Pitchfork Ranch Co. v. Bar TL

• Decision Date: 18 August 1980
• Docket Number: No. 5259,5259
• Parties: 29 UCC Rep.Serv. 1522 PITCHFORK RANCH COMPANY, a Wyoming Corporation, Appellant (Defendant), v. The BAR TL, a Wyoming Corporation, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 541

615 P.2d 541

29 UCC Rep.Serv. 1522

PITCHFORK RANCH COMPANY, a Wyoming Corporation, Appellant (Defendant), v. The BAR TL, a Wyoming Corporation, Appellee (Plaintiff).

No. 5259.

Supreme Court of Wyoming.

Aug. 18, 1980.

Lawrence A. Yonkee and Tom C. Toner of Redle, Yonkee & Arney, Sheridan, and Ernest J. Goppert, Jr., and Richard W. Day of Goppert, Day & Olson, Cody, for appellant.

William H. Brown, Jr., and Claude W. Martin of Brown, Drew, Apostolos, Massey & Sullivan, Casper, and Charles G. Kepler and L. B. Cozzens of Simpson, Kepler & Cozzens, Cody, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

OVERVIEW

This appeal from a summary judgment has, as its task, the resolve of the question which asks whether or not the Bar TL Ranch near Meeteetse, Wyoming, was sold to the highest lawful ¹ bidder at an auction sale in 1978 and if it was not, were the sale representations, relevant agency authorities and the applicable legal concepts such as to render unnecessary that the ranch be knocked down to the person submitting the highest bid. The pleadings indicate that both parties valued the ranch, at the time of sale, to be $4,000,000.00. ² In the face of an uncontroverted affidavit of one Ronald Florance, wherein he deposes and says that he bid $1,610,000.00 for the property, Pitchfork argues the ranch was sold to it for $1,600,000.00. For what is alleged to be good and valuable consideration, Bar TL was assigned the Florance rights arising out of the sale before its quiet-title suit was filed.

On July 1, 1978, the subject lands were submitted to the public auction block at the Bar TL Ranch in Park County, Wyoming. The auction was advertised widely as an absolute auction with no reserves and no minimums. Kennedy & Wilson Auctioneers conducted the auction.

At a certain juncture in the proceedings, the whole of the Bar TL Ranch lands and leases was offered as an entity on a lump-sum basis. Pitchfork bid $1,600,000.00. It is Pitchfork's position that the record reveals its bid to be the highest at least the highest within the rules of the sale and the law applicable thereto or, alternatively, there is an issue of fact on the question of who submitted the highest lawful bid and, therefore, the entry of summary judgment in favor of Bar TL and the denial of summary judgment on Pitchfork's counterclaim was error.

Appellee-Bar TL argues that since this auction was advertised as a no-reserves sale, all parties are bound to the legal consequences attendant upon such sale, including the collateral-contract theory which holds that the only valid sales agreement capable of evolving from a no-reserves auction is one in which the seller becomes the offeror through no-reserve presale representations and only the highest bidder is capable of accepting the offer. Therefore, argues Bar TL, a purported contract between a seller and a bidder, other than the one submitting the highest bid in a no-reserves auction, is void for all purposes.

In response to the seller-Bar TL's suit to quiet title, the district judge entered summary judgment in its favor, thereby deciding that the ranch property was not sold to the highest bidder as required by public sales advertisements, agreements between and among the parties and those concerned, and the applicable law, and, furthermore, there was no question of fact on this issue. The court also denied Pitchfork's motion for summary judgment on its counterclaim for specific performance.

Issue

The appellant identifies, among others, the following issue for our consideration:

"Is there a genuine issue of material fact as to whether Florance ever made a bid or attempted to make a bid in excess of the Appellant's bid?" ³

Holding

It is unnecessary for us to reach other issues called up by the appellant since we will affirm the trial court's conclusion that the property was not sold to the highest bidder as required by law. ⁴ In reaching our decision, we will hold that Pitchfork did not consummate a contract of sale with Bar TL by reason of the bidding at the public auction in question here.

FACTS

The Bar TL, Kennedy & Wilson Auctioneers, Melvin C. McGee, broker, and George J. McWilliams, d/b/a George J. McWilliams Real Estate Auction Company, executed a listing agreement effective April 7, 1978, under the terms of which the Bar TL listed its real and personal property for sale at public auction. This agreement contained the following relevant paragraphs:

"2. Said ranch properties will be sold at absolute public auction ( ⁵ on July 1, 1978 unless later by mutual consent. The properties may be offered in parcels or as an entirety as agreed by the parties.

"10. KW (auctioneer) and broker agree that the preparing, promoting, publicizing, organizing and consummating the sale shall be conducted strictly in accordance with Wyoming and other applicable laws and regulations; that they and their respective companies and personnel will use their best efforts to obtain buyers who will pay the highest prices obtainable at the public auction. . . .

"a. auctioneers will be responsible for . . . all matters relating to the public auction elements of the sale including the auctioneering, clerking and overall organization and procedure at the sale.

"d. in accordance with Wyoming law, rules and regulations all matters in connection with the sale and its promotion will be under the direct supervision of broker and broker will have full responsibility therefor.

"11. Each party agrees to work closely with the other in all matters and activities involving preparation, publicizing, organizing and conducting the sale in order to obtain the highest price for the properties." (Emphasis and parenthetical matter supplied.)

A letter from Donald Kennedy, of Kennedy & Wilson Auctioneers, circulated to prospective bidders, including Pitchfork ⁶, contained the following language:

"Jerry Housel, a Cody Wyoming attorney and long time rancher is retiring. His hugely successful, 70,000 acre BAR TL RANCH properties will be offered at public auction by KENNEDY & WILSON AUCTIONEERS, INC., of Los Angeles, California in cooperation with George McWilliams, Auctioneer, Bozeman, Montana. There will be no minimums and no reserves. The auction will take place at the BAR TL RANCH, just south of Cody, Wyoming on Saturday, July 1, 1978 at 12:00 Noon."

Advertising placed in newspapers world-wide represented the sale as an "absolute no minimum auction." ⁷

In the "Receipt and Sales Agreement," which was never signed by Jerry Housel, the president of Bar TL, but which was signed after the auction by Vice President and Manager, Jack Turnell, for Pitchfork, the following appears:

"6. seller's representations. Buyer makes this agreement in full reliance upon his independent investigations and judgment. There are no verbal or other agreements or representations which modify or affect this agreement and items are purchased as is. All representations made by The Bar TL or any of its brokers, agents, employees or representatives in negotiating or conducting the sale are incorporated herein." (Emphasis supplied.)

The record makes the following undisputed facts available to our consideration in a summary-judgment appellate context:

(1) The auctioneer, Kennedy, as agent for Bar TL, the seller, was obligated by contract to employ his best effort to sell the ranch to the highest bidder. ⁸

(2) Auctioneer Kennedy had agreed with seller to conduct a no-reserves auction.

(3) All bidders (including Pitchfork) were informed that this was a "no-reserves" auction.

(4) Before the hammer fell, knocking down the ranch to Pitchfork, Ronald Florance made a bid by placing it with a floorman who was an auction official acting with and in behalf of the auctioneer. ⁹

(5) The Florance bid was for $1,610,000.00, which was $10,000.00 higher than the $1,600,000.00 previously bid by Pitchfork.

(6) Prior to and after the Pitchfork and Florance bids, the auctioneer had announced the bids would be confined to $25,000.00 minimum increments.

(7) Jerry Housel, president and principal officer of Bar TL, had not given Kennedy authority to adopt a minimum-increment policy, the effect of which would serve to preclude contracting with the highest bidder, and had no knowledge of the $25,000.00 increment policy invoked by Kennedy.

(8) Florance had not heard the auctioneer's minimum-increment announcement.

(9) The auctioneer, Kennedy, had a pre-auction understanding with his floormen which would preclude a bid as low as a $10,000.00 increase being communicated to him.

(10) Housel had no knowledge of this intramural arrangement among the auctioneers and at all times relevant hereto believed the sale was being conducted as a no-reserves auction that is an auction from which he could not withdraw his property once the bidding had commenced.

(11) Because of his $25,000.00 increment policy, Kennedy would not have knocked the property down to Florance for $1,610,000.00 even if he had heard the bid or it had otherwise been communicated to him. ¹⁰

12 Ronald Florance has assigned to Bar TL any interest that he acquired as a result of his bid for the property.

While the above enumerated facts stand uncontroverted in the record the only ones essential to our decision herein are: (a) the auction was advertised as a no-reserves sale; and (b) there was a higher bid than that made by Pitchfork.

THE LAW

Preliminarily, we restate the now-familiar law of summary judgment, in compliance with which we must decide this appeal.

The Law of Summary Judgment

We summarized the law of summary judgment in Timmons v. Reed, Wyo., 569 P.2d 112, 115-116 (1977), when we said:

"Upon reviewing the record on appeal from the granting of summary judgment,

" '. . . we have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did. . . .' Seay v....