Ratchford v. Proprietors' Insurance

Douglas, J. Former R.C. 3903.07, as recodified October 1, 1953, provided in relevant part: “The superintendent may, subject to the approval of the court sell or otherwise dispose of the real and personal property of the company, or any part thereof, and sell or compromise all doubtful or uncollectible debts or claims owing to the company, includ — 3 — ing claims based upon an assessment levied against a member or subscriber of any company issuing assessable policies.” (Emphasis added.) The merit issue before us involves the operative words “subject to the approval of the court.” Do these words give a trial judge the right to disapprove an otherwise validly secured and entered-into purchase contract or is the trial judge limited to determining if the procedures leading to the agreement were in accordance with law and free from fraud or abuse of the liquidator’s discretion? Because we believe that the intent of the General Assembly, as expressed in R.C. Chapter 3903, was to give a liquidator broad general authority and responsibility to dispose of assets of an insolvent insurance company subject only to judicial review to assure that there is no fraud or abuse of discretion in the process, we reverse the judgment of the court of appeals and enter final judgment for appellant. Before proceeding to the merit issue, there are two procedural matters that should be addressed. On either ground (or both), the judgment of the court of appeals should be reversed and final judgment entered for appellant. There really is no case or controversy now pending before this court nor would there be before the trial court if this case is either affirmed or reversed. Certainly the liquidator, who sought appellant’s bid, approved the bid, signed a. contract accepting the offer and then urged the trial court to approve the contract, should not now be heard to say that he disavows the contract. Since he (the liquidator) and appellant are the only parties now before us (Capitol having withdrawn), it would seem that the contract between these parties should be approved since there are no recognizable pending objections to the contract. Of course we do not decide the case on this ground since the matter has not been presented to us, briefed or argued. The second procedural issue involves the basis for the court of appeals’ decision. The court of appeals found “* * * an irregularity in the sale process which entitled the court [trial court] to reject the liquidator’s motion to approve the contract with Piolata. * * *” The perceived “irregularity” was that the Sabatino offer, which had originally been accepted by the trial court and then orally vacated by that court, had not been vacated as a matter of public record. The court of appeals reasoned that “* * * since the property was not publicly advertised for sale, some bidders may have concluded that the property was no longer subject to sale. * * *” (Emphasis added.) The court of appeals found that this “irregularity” was enough to permit the trial court not to approve the contract between the liquidator and appellant. There are two serious problems with this conclusion of the court of appeals. First, as the court of appeals itself noted, “R.C. 3903.07 gives the superintendent the authority to sell or otherwise dispose of the real property of a liquidated company. It is within the discretion of the superintendent to determine the means of sale and to determine what bidder has submitted the offer that is in the best interest of the creditors. There is nothing in R.C. Chapter 3903 which prohibits the use of a private sale in the liquidator’s disposition of a specific piece of real property." (Emphasis added.) Given this clear and unequivocal statement, it is difficult to understand the final conclusion of the court of appeals that the property “* * * was not publicly advertised for sale * * *” and — 4 — that this was an “irregularity” in the proceedings which supported the negating of the contract between the liquidator and appellant. The Second problem with the court of appeals’ opinion and decision is one of even more profound concern. Appellate courts review cases based upon records compiled in.lower courts and upon issues raised in trial courts. Here, the court of appeals raised, and then decided, the case on the issue of whether the property was publicly advertised for sale. Such an issue was never raised, argued or briefed in the trial court and, in addition, there is nothing in the record to support the appellate court’s conclusion. It is unfair on appeal, and inappropriate, to decide a case on an issue that a party, losing by the decision, has not had an opportunity to refute by introducing evidence or argument. In addition, what evidence there is in the record is completely contrary to the court of appeals’ conclusion. It is alleged, and not denied, that a very large “For Sale” sign had been erected on the property and had remained in place for some time. The property and sign were in place on one of Central Ohio’s busiest roadways. It is difficult to understand the court of appeals’ decision that some bidders may have concluded that the property was no longer for sale during this protracted process. Further, the liquidator actively solicited bids for the property between the time the trial judge orally vacated his original approval of the Sabatino offer, October 17, 1986, and the time the contract with appellant was concluded, February 1987. Certainly the vacation of the Sabatino offer was no secret to the many potentially interested bidders who appeared at the several court hearings held subsequent to the vacation. Additionally, the record does contain documents from other developers and real estate agencies, leaving no question that those interested in the property had knowledge that the property was for sale and the liquidator was seeking offers. While the foregoing is persuasive, the real point here is that the court of appeals decided this case on an issue that was not raised by any party, creditor, intervenor or the trial court itself! Adopting such a procedure was improper and unfair. As to the merit issue, we agree with the court of appeals when, in discussing the appellant’s accepted offer, it made, in part, the following points: that the superintendent, pursuant to R.C. 3903.07, has the authority to sell a liquidated company’s real property; that the superintendent has the right and power to determine the means of sale; that nothing prohibits a private sale; that the superintendent has the authority to determine what is in the best interest of the creditors; that in accepting appellant’s offer, the liquidator said he had reviewed various offers for the sale of the property and had chosen appellant’s; that the liquidator had accepted appellant’s offer because he believed it was the best and highest bid; and that “* * * [t]here is no evidence that Piolata’s bid was made fraudulently or irregularly ***** While, admittedly, precedent on the issue now before us is sparse, we find In re Liquidation of National Surety Co. (1936), 248 App. Div. 111, 288 N.Y. Supp. 1014, helpful and persuasive. This case involved a strikingly similar fact pattern to the case at bar. At issue was the interpretation of Section 421 of the New York Insurance Law (rehabilitation statute). In almost identical language to R.C. 3907.07, New York’s Section 421 stated: “The Superintendent may, subject — 5 — to the approval of the court (a) sell or otherwise dispose of the real and personal property, or any part thereof, of [the company in liquidation]. * * *” (Emphasis added.) In National Surety Co., and as found by the court of appeals below in the case at bar, “* * * the liquidator accepted a bid which was the highest bid received by him after the property was offered for bid. The trial court refused to accept that bid because the third highest bidder had improved its bid by amendment in open court to provide more money for the creditors. There was no claim that the original bid chosen by the liquidator was made fraudulently or irregularly. The superintendent of insurance was motivated by the best interest of the creditors of the insurance company in accepting that bid. The appellate court reversed the judgment of the trial court on the basis that the court’s power of approval extended only to the examination of whether the bid which the liquidator had accepted was made fraudulently or irregularly and whether the superintendent of insurance was motivated by the best interest of the company’s creditors. The appellate court pointed out that all interested parties had a fair chance to compete and the bid approved by the liquidator was the highest and best bid at the time the liquidator accepted it.” (Emphasis added.) Given this recitation by the court of appeals and these facts, which are almost identical to the case at bar, we further concur with the court of appeals’ statement that “[w]e agree with the majority in In re National Surety Co. The liquidator’s bidding process would be meaningless if the court can consider a higher bid which was not submitted to' the liquidator in a sale process which took place fairly and without irregularity.” Our only disagreement with the court of appeals is its finding that an “irregularity” involving the Sabatino bid existed and thus the property should have been publicly advertised. We find no irregularity at all, given the facts that the sale could have been a private sale and that all the parties who eventually expressed an interest submitted offers. As the court in National Surety Co., supra, at 117, 288 N.Y. Supp. at 1021, said: «* * * Nevertheless, we do not believe that the discretion of the superintendent of insurance should be interfered with upon the theory that sometime in the future the property of the corporation may become more valuable than it was on March ninth when the bids were opened. * * * The public at large were accorded a full and fair opportunity to comply with the provisions of the proposal * * *. Public confidence requires that an officer who has charge of the sale of large properties, should be permitted to accept the honest and adequate offer of the highest bidder where, as here, all investors had a fair chance to compete.” This is exactly what happened in this case! It is argued, however (and now only by the liquidator who accepted appellant’s offer and moved the trial court to approve the agreement), that even though there was no fraud, irregularity or abuse of discretion in the selling and buying process and even though the liquidator obtained the highest and best price for the property, based upon negotiations and bids, that was available at the time of the proposed sale, the trial court was only interested in obtaining the most money possible for the creditors of PIC in the liquidation. Therefore, the argument continues, the trial court had the authority to disapprove the contract between the liquidator and appellant — 6 — based on the “subject to approval of the court” language in R.C. 3903.07. Other than this is a curious argument made by a person, the liquidator, who has signed a contract and previously asked the trial court to approve the offer as being the highest and best obtainable, and no fraud or irregularity has occurred, the argument fails for at least six other reasons. First, the statutory scheme for liquidation of insolvent insurance companies needs to be understood. Pursuant to then existing R.C. 3903.07, the liquidator becomes the owner in law — the legal owner — of all the property of the insolvent corporation. That means that title-to the property, including the land in question, is vested in the liquidator. It is obvious that the General Assembly, in giving legal ownership to the liquidator and then empowering the liquidator to negotiate and execute binding contracts of sale, did not intend to vest in a trial court the power to set aside such contracts on the basis of inadequate price, terms and conditions of sale or other matters, absent, of course, fraud or abuse of discretion by the liquidator. To permit a trial court to do so would result in the court being able to substitute its judgment for that of the liquidator. It is not difficult to see what a cumbersome procedure this would be and that the intent of the General Assembly was to limit a court’s inquiry to a determination that no fraud or abuse of discretion has occurred. Second, this interpretation of legislative intent is clearly supported by subsequent actions of the General Assembly. When the legislature amended, in 1983, the statutory scheme for liquidation of insolvent insurance companies, court approval of sales of land was eliminated entirely without so much as a reported comment in the legislative history. In making minor changes and “tuning up” the law, it can be cogently argued that the General Assembly, not commenting upon the change, never intended at any time to give a trial court a participant’s role in liquidation, but intended only a supervisory role to ensure against fraud and abuse of discretion. Third, and as further proof of this intent, we need to look further into the liquidation statute. Then in effect, R.C. 3903.11, relating to liquidation procedure, provided that in liquidating the insolvent company’s business, the liquidator could solicit a contract with another solvent insurance company to assume the liability, in whole or in part, of policyholders of the insolvent company. If the liquidator chose to proceed pursuant to R.C. 3903.11, then the trial court was given an active role. There had to be a hearing and before court approval was obtained, the court was required to find that the liquidator had obtained the best possible contract and that the contract was in the best interests of the parties. Only then could the court approve the contract. Significantly, no mention of the sale of the insurance company’s property was made in R.C. 3903.11 and, thus, this more detailed legislatively mandated procedure of court intervention did not apply to sales of real property such as we now have before us. Fourth, it is instructive to look at how the General Assembly and the courts handle other types of liquidations. While again authority is sparse, it is important to recognize that current R.C. Chapter 1157 involves savings and loan associations which appear to be distressed or insolvent. In that chapter, and specifically R.C. 1157.10(B), it is provided that the superintendent of building and loan associations “* * * may sell, lease, exchange, or otherwise dispose of - any — 7 — assets of such association, whether real, personal, or mixed * * * and accept therefor such considerations as such court or judge by order approves * * *.” The predecessor to R.C. Chapter 1157 was G.C. Chapter 687. In interpreting several provisions of G.C. Chapter 687, the Second District Court of Appeals in State, ex rel. McDonald, v. Kroeger (App. 1938), 27 Ohio Law Abs. 329, 331, said: “The Legislature is within its right when it invests exclusive control and supervision of associations in the superintendent of Building & Loan Associations. “Of course, the law is well recognized that the acts of any administrative officer or individual may be questioned for fraud or abuse of discretion.” (Emphasis added.) The court of appeals continued: “An examination of the Eichenbary Act and other cogent sections will disclose that the Legislature sought to circumvent a possible abuse of discretion by providing that many of the orders of the superintendent would become effective only upon approval by the Court of Common Pleas in and for the county in which the Building & Loan Association was located. “Under the provisions of the Eichenbary Act great latitude is given to the superintendent in the administration of the affairs of a Building & Loan Association taken over or being liquidated under his supervision. * * *” (Emphasis added.) Id. Therefore, when faced with reviewing language similar to “subject to the approval of the court” language as found in R.C. 3903.07, the standard used was abuse of discretion. Likewise, here, there should be no substituting of a court’s judgment for that of the liquidator absent fraud or abuse of discretion. Fifth, it is fair to ask where, if our decision were otherwise, would the process end — or would it ever end? If the properly was now to be advertised and new bids sought, what is there to stop yet another person or entity from coming into court, after the liquidator has received the offers and accepted the highest bid, and indicating that the advertisement for bids had not been noticed and the non-bidder was now willing to pay $500 or $1,000 more per acre. Upon what authority could a trial court now say “no, the process is over”? Obviously, the same rationale in refusing appellant’s accepted offer would pertain to new offers or bids. Here the property in question is apparently appreciating in value. What if property being liquidated was losing value and the offeror of a liquidator-accepted offer chose to be relieved of his or her obligations? All the offeror need do is have someone come into court and offer something more for the property, thereby forcing new bids or offers at which the original offeror and the new offeror need not bid. Such a policy, as espoused by the trial court and the court of appeals, could lead to a complete frustration of the sensible scheme laid out by the General Assembly. Appellant is now obligated. Barring fraud or abuse of discretion, both appellant and the liquidator must live with their bargain. The sixth and final concern is really the greatest. Here we have a mutually bargained-for, agreed-to contract. The liquidator here is not like a court-appointed receiver or trustee. The liquidator is not acting at the behest or on the behalf of the court. The liquidator is the owner of the property. He has entered into an agreement to sell what amounts to his property. The contract is binding and absent fraud, abuse of discretion or illegality, it must be enforced. Certainly, if the appellantofferor were seeking to be relieved — 8 — from his bargain, this court and each court along the way would say to appellant that he has made a bargain, and that good or bad he must live with it. The liquidator’s obligations should not be any different. Generally speaking, a contract is a definite agreement between two or more competent parties based upon a legal consideration to do, or to refrain from doing, some lawful thing. The contract in question between appellant and the liquidator meets each of these requirements. The understanding between the parties was definite. Each of the parties was competent and appellant made a deposit and promised to pay the balance due. The agreement was to buy and sell a piece of property — clearly a lawful undertaking. As England moved from a relatively primitive culture to a commercial center with a capitalistic trend, the law, by necessity, also changed. One of the changes involved “freedom of contract” and this freedom became the underlying principle for the development of the law of contract. This is well-illustrated in Maine’s classic phrase that “* * * the movement of the progressive societies has hitherto been a movement from Status to Contract” (Emphasis sic.) Maine, Ancient Law (4 Amer. Ed. 1906) 165. Professor Williston added that “[economic writers adopted the same line of thought. Adam Smith, Ricardo, Bentham and John Stuart Mill successively insisted on freedom of bargaining as the fundamental and indispensable requisite of progress * * *.” Williston, Freedom of Contract (1921), 6 Cornell L.Q. 365, 366. Chief Justice John Marshall said about the law of contract: “* * * If, on tracing the right to contract, and the obligations created by contract, to their source, we find them to exist anterior to, and independent of society, we may reasonably conclude that those original and pre-existing principles are, like many other natural rights, brought with man into society; and, although they may be controlled, are not given by human legislation.” Ogden v. Saunders (1827), 25 U.S. (12 Wheat.) 213, 345. The right and freedom to contract is an inalienable right which existed prior to, and independent of, government. The power of the parties to contract as they please for lawful purposes remains a basic principle of our legal system. We are not persuaded to inhibit that right in this case. Accordingly, in a statutory liquidation of an insolvent insurance company, former R.C. 3903.07 authorizes a court of common pleas to withhold approval of the sale, by the statutory liquidator, of real property of the insolvent company only where there is a finding of fraud or abuse of discretion on the part of the liquidator. The judgment of the court of appeals is reversed. The liquidator is ordered to carry out the terms of appellant’s accepted offer. Final judgment is granted to appellant. Judgment reversed. Sweeney, Wright and Resnick, JJ., concur. Moyer, C.J., Holmes and H. Brown, JJ., dissent.