BETH ANN CARNETT v. LINDA WRIGHT, MARY DELL CARNETT, ANTHONY M. CARNETT, LARRY D. CARNETT and TREVOR CROCKER
Annotate this Case
Download PDF
RENDERED: May 30, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001033-MR
BETH ANN CARNETT
v.
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
CIVIL ACTION NO. 01-CI-00428
LINDA WRIGHT, MARY DELL
CARNETT, ANTHONY M. CARNETT,
LARRY D. CARNETT and TREVOR CROCKER
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
This
appeal
arises
from
the
sale
for
division of a piece of property in Marshall County, Kentucky.
The
parties
have
agreed
on
a
statement
of
the
facts
and
procedural history of the case, which we set forth below:
Walter Carnett and wife, Margarett Carnett,
owned a home in Marshall County, Kentucky, as tenants
in common.
13,
1995.
passed
Beth
Walter Carnett died intestate on February
His
to
one-half
Margarett
Carnett,
interest
Carnett
Linda
and
Wright,
in
his
Mary
Carnett, and Larry Carnett.
the
property
five
children,
Carnett,
Anthony
Margarett Carnett died
testate on August 20, 1999, devising her interest in
the property to one daughter, Beth Carnett.
After
the
death
of
both
parents,
Beth
possessed a 4/5 interest in the property and each of
the other four children possessed a 1/20[] interest.
Beth
brought
this
alleging
that
without
materially
defendants
herein,
as
the
failed
action
property
for
alleged
could
impairing
to
respond
in
the
division
not
its
and
or
sale,
be
divided
value.
The
facts
recited
the
complaint,
were
deemed
admitted and a default judgment and order of sale was
entered January 7, 2002.
Pursuant to the order of sale, the master
commissioner proceeded with a sale of the property.
The property was advertised and a “[n]otice of [s]ale”
2
was placed of record.
The terms of sale included a
notice that “the property will be sold subject to the
statutory right of redemption.”
On
February
8,
2002,
the
conducted the sale as advertised.
report
of
sale,
the
property
commissioner
Pursuant to the
was
appraised
at
$54,300.00 and sold for $22,000.00.
[Beth] moved to set aside the sale on the
grounds that there is no statutory right of redemption
for property sold as a result of a suit for division.
By order entered March 8, 2002, the court denied [the]
motion because “any objections to statements that the
property
would
redemption
be
should
sold
have
subject
been
to
made
a
right
of
prior
to
the
[j]udgment
and
hearing.”
The
court
then
entered
a
[o]rder [c]onfirming [s]ale on March 13, 2002.
order
provided
redemption
in
that
the
accord
sale
with
the
was
with
terms
of
a
This
right
the
of
sale.
Appellee Trevor Crocker then moved to alter or amend.
The court entered another order on April 24, 2002.
This order amended the March 13 order by deleting the
reference to the right of redemption.
3
We will first address the question of whether Beth
properly
presented
advertisement.
v.
Bennett,1
her
objection
to
the
commissioner’s
This case is analogous to the case of Sizemore
in
which
a
series
of
advertisements
published
regarding a judicial sale of property listed the incorrect date
on which the sale was to occur.
although
the
dissatisfied
It was uncontroverted that
party’s
attorney
knew
of
the
inaccuracy before the sale took place, he took no action to stop
the sale or alter its terms, but instead sought to have the
circuit court set aside the sale after the fact.
Kentucky’s
highest
court
noted
that
“[n]othing
that
[the] plaintiff’s attorney could have said at the sale could
have had any legal effect on the sale.
The commissioner was in
charge of the sale and he was acting as an arm of the court and
his actions were not subject to the control of either or any of
the parties to [the] action.”2
“Furthermore, as the trial court
pointed out, [the dissatisfied parties] sought to obtain the
relief they contended they were entitled to from the only source
which was empowered by law to pass upon their motion to vacate
the sale.”3
Having found that the sale was properly contested,
1
Ky., 408 S.W.2d 449 (1966).
2
Id. at 451.
3
Id.
4
the Court upon reaching the merits, concluded that the sale was
properly
set
aside
on
the
basis
of
the
inaccurate
advertisements.
Like the aggrieved parties in Sizemore, Beth or her
attorney were without the ability to challenge the incorrect
advertisement
occurrence.
or
commissioner’s
sale
until
after
their
Therefore, the challenge to the sale was properly
brought before the circuit court in an attempt to have it set
aside.
It
is
well
established
in
Kentucky
that
“the
[c]ommissioner of the court must conduct a sale according to the
terms and conditions of the judgment.
must
be
set
aside
unless
it
is
If he does not, the sale
clear
that
no
rights
interested party were prejudiced by the deviation.”4
of
an
Here, the
order of sale reflected that the property would be sold without
a right of redemption because a sale for division carries no
right of redemption.5
Therefore, the commissioner’s error in
advertising the property requires that the sale be set aside
unless it is clear that no prejudice resulted.
Beth points to the appraised value of the property as
an
indication
of
the
amount
it
would
have
brought
4
Miller v. Halsey, Ky., 327 S.W.2d 943 (1959).
5
See KRS 389A.030.
5
had
the
advertisement not reflected a right of redemption.
While it is
true
a
that
division,6
appraisal
is
not
there
no
reason
information,
if
is
available,
required
we
in
as
part
should
determining
of
not
sale
consider
whether
for
that
prejudice
resulted from the commissioner’s error.
There
is
a
substantial
difference
between
the
appraised value and the amount realized at the commissioner’s
sale.
While it is true that property sold at judicial sale
often brings less than its full retail value, we cannot ascribe
all of the discrepancy to that factor alone and none to the
commissioner’s error.
Because it is not clear that no party was
prejudiced, the sale must be set aside.
The judgment confirming the sale is reversed and this
case
is
remanded
to
Marshall
Circuit
Court
for
further
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Robert L. Prince
PRINCE & BRIEN, P.S.C.
Benton, Kentucky
Tom Blankenship
Benton, Kentucky
6
See Maynard v. Boggs, Ky. App., 735 S.W.2d 342 (1987).
6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
