FREEMAN HOLDINGS OF ARKANSAS, LLC, AND FRANCIS B. FREEMAN, JR. APPELLANTS
FNBC BANCORP, INC. APPELLEE
Friday, Eldredge & Clark, LLP, by: William A. Waddell,
Jr. and Joshua C. Ashley, for appellants.
Quattlebaum, Grooms & Tull PLLC, by: Joseph W. Price II
and Thomas H. Wyatt, for appellee.
FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CV-16-263]
HONORABLE JOHN R. PUTMAN, JUDGE.
RAYMONDR. ABRAMSON, JUDGE.
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
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.
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.
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
terms and conditions agreed to by Mikesch would prove to be
integral to the future litigation. They provide in part as
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 Copy Of The Offer & Acceptance
Agreement That Will Be Emailed To You Immediately After
Acceptance By The Bank. The Balance Will Be Due In Approx. 30
Day [sic] At Closing. The Purchaser Will Pay The Buyers Side
Of The Closing Costs And All Taxes Will Be Prorated To The
Date Of Closing.
terms and conditions also specify that a 10 percent
buyer's premium will be added to the bid to determine the
final sales price and refer to a "sample"
offer-and-acceptance agreement, which is not included in the
record and may not have existed at the time Mikesch placed
bids on behalf of Freeman. Finally, the terms and conditions
indicate that "your bid is a contract to buy" and
that all property is sold "as is."
Mikesch learned that Freeman had placed the highest bid for
the property, he called Wooley and was informed that FNBC had
to accept its bid. Mikesch admitted that he was later
notified that FNBC had accepted the bid. Thereafter, Wooley
allegedly sent Mikesch an email that attached the auction
contracts, including the offer-and-acceptance agreement.
Importantly, the offer-and-acceptance agreement merely
reiterated the terms and conditions to which Freeman had
agreed and incorporated the exact monetary amount Freeman
offered to pay. Specifically, the offer-and-acceptance
agreement specified the bid price offered by Freeman-$52,
000. The document then calculated the 10 percent buyer's
premium-$5200; the total purchase price-$57, 200; the down
payment-$11, 440; and the balance due at closing-$45, 760.
Mikesch contends that he did not receive Wooley's email.
Two months passed, and Freeman never paid any of the money
due according to the terms and conditions of the auction, nor
did it sign the offer-and-acceptance agreement. Freeman never
closed on the sale of the property.
refusal to close on the property was based on perceived
problems with it. After the auction, Freeman inspected the
property, which led it to conclude that the building's
pipes had burst. Freeman declined to go forward with its
purchase because it believed that the property had not ...