Freeman Holdings of Arkansas, LLC v. FNBC Bancorp, Inc.

          Rehearing Denied April 24, 2019

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[Copyrighted Material Omitted]

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          APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CV-16-263], HONORABLE JOHN R. PUTMAN, JUDGE

         Friday, Eldredge & Clark, LLP, Little Rock, by: William A. Waddell, Jr. and Joshua C. Ashley, for appellants.

         Quattlebaum, Grooms & Tull PLLC, Little Rock, by: Joseph W. Price II and Thomas H. Wyatt, for appellee.

         OPINION

         RAYMOND R. ABRAMSON, Judge

          This lawsuit arises out of an online auction to sell certain real property located at 901 South Main Street in Mountain Home, Arkansas. The overarching issue presented in this appeal is whether Freeman Holdings of Arkansas, LLC, and Francis B. Freeman, Jr., (Freeman) formed an enforceable contract with FNBC Bancorp, Inc. (FNBC), to purchase the property. The circuit court found that an enforceable contract existed between the parties and ordered specific performance. We affirm.

          I. Background

          FNBC sought to sell certain real property located at 901 South Main Street in Mountain Home, Arkansas. FNBC hired Wooley Auctioneers (Wooley) to administer an online auction to sell the property and gave Wooley the exclusive right to offer the property for sale. In the course of Wooley’s representation of FNBC, Wooley drafted the documents for the online auction, and FNBC accepted those documents as its own.

          Freeman was interested in purchasing the property. Freeman authorized its agent, Raymond Mikesch, to conduct research on the auction and bid on the property. It is undisputed that Mikesch had authority to act on Freeman’s behalf.

          Before the auction, Mikesch perused Wooley’s website to familiarize himself with it. Then, on April 27, 2016, the date of the auction, Mikesch logged on to Wooley’s website and registered to bid. Mikesch was required to accept the terms and conditions of the auction when he registered to bid on the property. Thereafter, he made thirteen separate bids to purchase the property. At the conclusion of the auction, he was informed that he had placed the highest bid— $52,000.

          The terms and conditions agreed to by Mikesch would prove to be integral to the future litigation. They provide in part as follows:

TERMS TO PURCHASE REAL ESTATE: Successful Purchasers Will Be Required To Tender A Cashier’s Check In The Amount Equal To 20% Of Contract Purchase Price To The Respective Title Company(s) Within 48 Hours After Acceptance By The Bank, Along With A Signed ...