          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2020 Term
                                  _______________                              FILED
                                                                            June 15, 2020
                                     No. 18-0383                            released at 3:00 p.m.
                                   _______________                      EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA
                           ALEX LYON & SON,
                  SALES MANAGERS & AUCTIONEERS, INC.,
                         Defendant Below, Petitioner

                                          v.

                                  JAMES R. LEACH,
                              Plaintiff Below, Respondent

           ________________________________________________________

                   Appeal from the Circuit Court of Wood County
                      The Honorable Jason Wharton, Judge
                             Civil Action No. 17-C-110

                                  AFFIRMED
           ________________________________________________________

                             Submitted: February 19, 2020
                                 Filed: June 12, 2020

George J. Cosenza, Esq.                        Matthew C. Carlisle, Esq.
Cosenza Law Office                             Theisen Brock
Parkersburg, West Virginia                     Marietta, Ohio
Counsel for the Petitioner                     Jeffrey B. Reed, Esq.
                                               Parkersburg, West Virginia
                                               Counsel for the Respondent



JUSTICE HUTCHISON delivered the Opinion of the Court.
                               SYLLABUS BY THE COURT

              1.     When real or personal property is sold in an auction with reserve, the

auctioneer (as agent of the seller) invites offers from successive bidders which the

auctioneer may accept or reject until the auctioneer announces the completion of the sale.

A bid is the equivalent of an offer to buy the property, and no contract is formed until the

auctioneer manifests final acceptance of the bid. In an auction with reserve, the property

will not be sold unless the highest bid is equal to or exceeds a minimum price.


              2.     When real or personal property is sold at an auction, the sale is

presumed to be with reserve unless the seller announces that the property is to be sold

without reserve.


              3.     When real or personal property is sold at an auction without reserve

(also called an “absolute auction”), the auctioneer (as agent of the seller) makes an offer to

sell at any price bid by the highest bidder, and the offer is accepted and a contract is formed

with each higher bid placed by a buyer. Once the auctioneer calls for bids, the property

cannot be withdrawn from the auction. In an auction without reserve, the property will be

sold to the highest bidder and no minimum price or other condition will limit bidding.


              4.     The seller of property sold at auction may prescribe, within reasonable

limits, the terms and conditions of the sale.




                                                i
              5.     A bidder at an auction is generally bound by the published or

announced terms and conditions of an auction, even if the bidder did not see or hear those

terms and conditions.


              6.     When a seller (or the seller’s agent, the auctioneer) establishes terms

and conditions for an auction of property in an advertisement or publication prior to an

auction, those terms and conditions are thereafter binding upon both the seller and any

bidder. Any bid placed at the auction incorporates those terms and conditions unless there

is an effective modification.


              7.     As a general principle, all the bidders at an auction must stand upon

an equal footing. Accordingly, an auctioneer cannot vary the announced terms of the sale

as to some bidders or any one bidder to the detriment of the other bidders.




                                             ii
HUTCHISON, Justice:

              In this appeal from the Circuit Court of Wood County we examine a narrow

and complex question: how is a contract formed in an auction? This question is one of

first impression in West Virginia.


              As we discuss below, the circuit court properly construed the law of auctions

and contracts. Because there are no genuine issues of material fact in the record below,

and inquiry concerning the facts will do nothing to clarify the application of the law, we

find that the circuit court correctly granted summary judgment to the plaintiff and denied

summary judgment for the defendant.


                        I. Factual and Procedural Background

              This appeal involves the auction of a plot of land in Vienna, West Virginia.

The defendant, Alex Lyon & Son, Sales Managers & Auctioneers, Inc., advertised and

conducted the auction of the property. The plaintiff, James R. Leach, was the high bidder

at the auction.


              The parties agree that the defendant placed several advertisements for the

sale of the property, in writing and online, and described the auction as an “absolute sale”

with a minimum opening bid of $200,000. The defendant’s advertisements contained

“terms and conditions” that required prospective buyers to make a 10% deposit before




                                             1
being allowed to place a bid on the tract. 1 The defendant also created an “Auction Catalog”

with terms and conditions that contained a similar requirement: that prospective bidders

must first provide “Cash or [a] Company Check” of the 10% deposit before bidding.

Furthermore, the terms and conditions in the pre-auction advertisements and catalog

required prospective bidders to provide a “Bank Letter of Guarantee” made payable to the

defendant to ensure payment of the balance of the proceeds if the bidder was successful at

the auction. Additionally, the pre-auction advertisements and catalog required that, before

bidding, bidders must sign a “Bidders Registration Agreement” that bound them to the

terms and conditions of the auction. Lastly, the advertising and catalog provided that the

terms and conditions of the auction could be modified only by a statement made at the

auction.
           2




               The defendant scheduled the auction of the property to begin at 1:00 p.m. on

May 21, 2016. The plaintiff arrived at the auction site early and waited. At about 12:50

p.m., the plaintiff approached the bidder’s registration table and spoke to an employee of

the defendant. When questioned, the employee confirmed to the plaintiff that no bidders




              The advertising noted that the defendant was auctioning “3.273 acres vacant
               1


land” with 315 feet of river frontage located at #1 17th Street, Vienna, West Virginia. The
advertisements specifically stated, at the top and in bold lettering: “Absolute Sale,
Minimum Opening bid $200K (10% Deposit Required to Bid).”

               For example, an online advertisement for the property advises bidders to
               2


examine the printed terms and conditions but provides that “STATEMENTS MADE DAY
OF SALE SUPERSEDE PRINTED MATERIAL.” The record is clear, however, that the
defendant made no statements at the auction.

                                             2
had made a deposit or otherwise qualified to bid on the property. In reliance upon that fact,

the plaintiff delivered to the defendant’s employee a signed bidder’s registration

agreement, a copy of a bank’s letter of credit, and a $20,000 check. The parties agree that

the plaintiff was properly qualified to bid on the property.


              Thereafter, the defendant’s auctioneer (a man named Jack Lyon) began the

auction. The defendant’s auctioneer did not announce any new or modified terms for the

auction; he simply sought bids on the property. However, another individual named Kurt

Lerch joined the bidding with the plaintiff. Bidding began at $200,000, and after a brief

round of increasing bids between the plaintiff and Mr. Lerch, the plaintiff won the auction

with a high bid of $265,000.


              The plaintiff subsequently filed this lawsuit against the defendant. The

plaintiff alleged that, immediately after the auction ended, he learned that Mr. Lerch had

not met the bidding requirements because he had not deposited 10% before bidding. The

plaintiff’s lawsuit sought damages based upon various legal theories, including breach of

contract, because the defendant had permitted an unqualified bidder (Mr. Lerch) to bid on

the property. The defendant responded to the lawsuit, and the parties conducted discovery.


              The plaintiff and the defendant subsequently filed motions for summary

judgment. The plaintiff pointed out that the defendant admitted that Mr. Lerch had not

placed a 10% deposit before the auction, had not signed a bidder’s registration agreement,

and had not offered any bank letter guaranteeing he could purchase the property. Instead,


                                              3
the defendant claimed that Mr. Lerch was a qualified bidder because the defendant’s

auctioneer, Mr. Lyon, had personally qualified Mr. Lerch to bid before the auction “by

virtue of his prior relationship with the [d]efendant and Mr. Lyon.” 3


              Moreover, the plaintiff took the deposition of Mr. Lyon, the defendant’s

auctioneer. Mr. Lyon testified that if the plaintiff were the only qualified bidder on the

property, then the winning price would have been only $200,000. Mr. Lyon testified as

follows:

              Q. If Kurt Lerch were not qualified to bid on the property,
              meaning [the plaintiff] Mr. Leach was the only bidder, what
              would the selling price have been?

              A. The price would have been $200,000.


              On April 5, 2018, the circuit court entered an order granting summary

judgment to the plaintiff and denying the defendant’s motion for summary judgment.

Because of the confusing language in the defendant’s advertisements and catalog, the

circuit court found that the sale met the definition of an “auction with reserve” because of

the requirement for a minimum bid of $200,000. However, once that minimum bid was

placed, the circuit court found that the defendant had advertised the sale as an “absolute



                The defendant also asserted that it had an “in-house” policy of allowing
              3


individuals to become “permanent qualified bidders” with a “permanent bid number,” and
these individuals would not have to meet advertised qualifications before bidding at
auctions. However, the defendant failed to produce any documentation showing Mr. Lerch
was such a perpetually qualified bidder. Furthermore, the record is undisputed that the
defendant neither advertised before, nor announced at, the auction its policy of waiving
posted terms and conditions for these so-called “permanent qualified bidders.”

                                             4
auction.” The circuit court then determined that when a party offers property for sale in an

“absolute auction,” a contract is formed between the bidder and the auctioneer with every

bid, until a higher bid is offered. In other words, the auctioneer’s advertising material was

an offer from the auctioneer to sell the property at the price bid by the highest bidder, and

the bidder accepted the offer and formed a binding contract with every bid.


              Additionally, the circuit court determined that the terms of the auctioneer’s

offer are contained in the auction’s advertising materials, and that these terms are binding

on the auctioneer unless there is an effective modification by the auctioneer. Once the

auctioneer sets forth the terms of the auction in advertising, bidders may rely on those

advertised terms in forming bids, and both the bidder and the auctioneer (and the seller for

whom the auctioneer works) are bound by those advertised terms.


              Applying these rules to this case, the circuit court found that the defendant’s

advertisements and catalog were “clear, unambiguous and undisputed,” and required

bidders to make a 10% deposit of the minimum bid as well as provide a letter of credit

guaranteeing that the bidder could complete the purchase. The circuit court found it was

undisputed that the plaintiff met these pre-auction qualifications and that the other bidder,

Mr. Lerch, did not. Accordingly, the circuit court found that a contract was formed

between the plaintiff and defendant when the plaintiff properly bid $200,000 or more on

the property, and the contract incorporated requirements that every bidder qualify by

posting a deposit, presenting a bank letter of guarantee, and signing the bidder’s registration

agreement. The circuit court then found that the defendant breached the contract when it

                                              5
permitted someone who was not a qualified bidder to also bid on the property. As the sole

qualified bidder, the circuit court concluded that the plaintiff should have been permitted

to buy the property at the minimum required bid, that is, for $200,000.


              Because the plaintiff (as the winning bidder against Mr. Lerch) paid

$265,000 after the conclusion of the auction, the circuit court ordered the defendant to

repay the plaintiff $65,000 for the excess purchase price and $3,867.50 in excess auction

commission fees, plus pre- and post-judgment interest.


              The defendant now appeals the circuit court’s April 5, 2018, summary

judgment order.


                                 II. Standard of Review

              We review a circuit court’s entry of summary judgment de novo. Syllabus

Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). “The question to be

decided on a motion for summary judgment is whether there is a genuine issue of material

fact and not how that issue should be determined.” Syllabus Point 5, Aetna Casualty &

Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).


              We have repeatedly held that under Rule 56(c) of the West Virginia Rules of

Civil Procedure, “[a] motion for summary judgment should be granted only when it is clear

that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syllabus Point 3, id. “Summary judgment

is appropriate where the record taken as a whole could not lead a rational trier of fact to

                                            6
find for the nonmoving party[.]” Syllabus Point 4, in part, Painter, 192 W. Va. at 190, 451

S.E.2d at 756. Moreover, we have explained that:

              Roughly stated, a “genuine issue” for purposes of West
              Virginia Rule of Civil Procedure 56(c) is simply one half of a
              trialworthy issue, and a genuine issue does not arise unless
              there is sufficient evidence favoring the non-moving party for
              a reasonable jury to return a verdict for that party. The
              opposing half of a trialworthy issue is present where the non-
              moving party can point to one or more disputed “material”
              facts. A material fact is one that has the capacity to sway the
              outcome of the litigation under the applicable law.

Syllabus Point 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). Finally, we are

cognizant that a plaintiff bears the burden of proof at a trial on the merits, and therefore “a

plaintiff only is entitled to summary judgment where his evidence is so strong that he would

be entitled to a directed verdict at trial.” Williams v. Precision Coil, Inc., 194 W. Va. 52,

62 n.17, 459 S.E.2d 329, 339 n.17 (1995).


              We now examine the record and the parties’ arguments to assess whether the

defendant presented any genuine issue of material fact, or whether inquiry concerning the

facts is desirable to clarify the application of the law.


                                        III. Discussion

              A contract is a “promise or set of promises” that is enforceable or otherwise

recognizable at law. Contract, BLACK’S LAW DICTIONARY (11th ed. 2019). Among the

various requirements to form a contract, the two key requirements we examine in this case

are “an offer and an acceptance[.]” Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281,

287, 737 S.E.2d 550, 556 (2012). In other words, there must be one party who makes an

                                               7
offer and another who accepts the offer, thereby reaching a “mutual assent” and a meeting

of the minds.

                In order for this mutuality to exist, it is necessary that there be
                a proposal or offer on the part of one party and an acceptance
                on the part of the other. Both the offer and acceptance may be
                by word, act or conduct that evince the intention of the parties
                to contract. That their minds have met may be shown by direct
                evidence of an actual agreement or by indirect evidence
                through facts from which an agreement may be implied.

Bailey v. Sewell Coal Co., 190 W. Va. 138, 140-41, 437 S.E.2d 448, 450-51 (1993).


                In this case, we are asked to consider the unique context of auctions, to

examine the contract requirements of “offer” and “acceptance,” and to weigh how a seller

and buyer in an auction reach a mutual assent. In the context of auctions, our research and

that of the parties reveals no controlling law on these contract requirements in West

Virginia, and a surprising paucity of case law in other jurisdictions. Instead, much of the

law in this area derives from legal encyclopedias and treatises such as WILLISTON ON

CONTRACTS,        the   RESTATEMENT        (SECOND)     OF    CONTRACTS,       and    AMERICAN

JURISPRUDENCE 2D. As one court said,

                The law related to sale of property at an auction is a legal
                anomaly. Various treatises describe the controlling legal
                principles at length and are, for the most part, in harmony.
                Little of this law, however, has made its way into the case law.
                Many state and federal courts, therefore, have relied on the
                treatises’ persuasive authority for auction questions.

Pyles v. Goller, 674 A.2d 35, 39 (Md.App. 1996).




                                                8
              Here, the defendant directly challenges the circuit court’s legal finding

concerning when an offer was made to buy the Vienna property, and when or if that offer

was accepted at the auction. The defendant asserts that the circuit court erred in holding

that the defendant’s pre-auction advertising was an offer to prospective bidders to form a

contract, and that an appropriate bid at the auction by the plaintiff was an acceptance of the

offer. The defendant argues that its advertising did not create an offer to prospective

bidders and was nothing more than a generic advertisement inviting bids at an auction. To

consider the defendant’s arguments, we must first identify the rules governing contract

formation in the context of an auction.


              West Virginia Code § 19-2C-1(h) (2019) defines an “auction” as “any public

sale of real or personal property in any manner . . . when offers or bids are made by

prospective purchasers and the property sold to the highest bidder.” “The main purpose of

auction sales is to obtain the best financial return for the seller by the free and fair

competition among bidders.” 7A C.J.S. Auctions and Auctioneers § 1. See also, Peck v.

List, 23 W.Va. 338, 377 (1883) (“What is the nature of such a sale by auction? It is that

the goods shall go to the highest real bidder.”).


              There are generally two different types of auctions: those “with reserve,” and

those “without reserve” (also known as an “absolute auction”). The distinction between

auctions with or without reserve is important because “[i]n an auction setting, the point at

which mutual assent is achieved [and a contract formed] depends on the type of auction

being held.” Pyles, 674 A.2d at 39-40. See also Marten v. Staab, 543 N.W.2d 436, 443

                                              9
(Neb. 1996) (“In order to determine whether a contract was formed at the auction, it is

necessary to identify the type of auction that occurred.”).


              The distinguishing feature between an auction with reserve or without

reserve is, simply, whether the property being sold can be withdrawn before the close of

the auction. In an auction with reserve, the auctioneer or seller “may withdraw the goods

at any time until he announces completion of the sale;” in an absolute auction or an auction

without reserve, “after the auctioneer calls for bids on an article or lot, that article or lot

cannot be withdrawn unless no bid is made within a reasonable time.” Pitchfork Ranch

Co. v. Bar TL, 615 P.2d 541, 551 n.12 (Wyo. 1980) (quoting 7 AMJUR.2D Auctions and

Auctioneers § 17).


              An auction with reserve is one “in which the property will not be sold unless

the highest bid exceeds a minimum price.” Auction, BLACK’S LAW DICTIONARY. “The

presumption in contract law is that auctions are held ‘with reserve’ unless otherwise

specified.” Pyles, 674 A.2d at 40. See also W.Va. Code § 46-2-328(3) (1963) (Under the

Uniform Commercial Code, in a sale of goods by auction, “[s]uch a sale is with reserve

unless the goods are in explicit terms put up without reserve.”). As noted before, in an

auction with reserve, the auctioneer or seller may withdraw the property at any time until

the auctioneer announces the completion of the sale.

              In an auction with reserve, the auctioneer, as agent of the seller,
              invites bids (offers) with the understanding that no bargain [or
              contract] exists until the seller has made a further manifestation
              of assent; the auctioneer may reject all bids and withdraw the
              goods from sale until he announces completion of the sale.

                                              10
Rosin v. First Bank of Oak Park, 466 N.E.2d 1245, 1249 (1984). See also W.Va. Code §

46-2-328(3) (“In an auction with reserve the auctioneer may withdraw the goods at any

time until he announces the completion of the sale.”).


              Because the seller in a with-reserve auction reserves the right not to sell the

property and may withdraw the property before acceptance of the highest bid, “an

auctioneer’s bringing a piece of property up for bid is an invitation to make a contract, and

is not an offer to contract.” Pyles, 674 A.2d at 40. See also Marten v. Staab, 537 N.W.2d

518, 522-23 (Neb. App. 1995) (“In an auction with reserve, the bidder is deemed to be the

party making the offer while the auctioneer, as agent for the seller, is the offeree.”). It is

therefore “the general rule that in auction sales, a bid is regarded as an offer to contract

which is accepted ‘by the fall of the hammer.’” Clemens v. United States, 295 F.Supp.

1339, 1340 (D.Or. 1968). “[A]sking for bids is asking for offers, which the seller or the

seller’s agent [the auctioneer] remains free to reject prior to acceptance.” 7 AM.JUR.2D

Auctions and Auctioneers § 13. “[A] potential purchaser’s bid is the equivalent of an offer

to buy merchandise, and an offer is accepted by the auctioneer upon the fall of the

hammer.” Id. See also Pitchfork Ranch, 615 P.2d at 547 (“[T]he sale contract is

consummated by the offer of the bidder to buy and the acceptance of the bid by the seller.”).

“The ramification of a with reserve auction is that the principal may choose to withdraw

the property at any time, before the hammer falls, and if the bidding is too low—the

auctioneer need do nothing and there is no contract between the seller and the bidder.”

Marten, 537 N.W.2d at 523.


                                             11
              An auction without reserve is one “in which the property will be sold to the

highest bidder [and] no minimum price will limit bidding.” Auction, BLACK’S LAW

DICTIONARY. Furthermore, in an auction without reserve, “the owner may not withdraw

property after the first bid is received, the owner may not reject any bids, and the owner

may not nullify the bidding by outbidding all other bidders.” Id.


              In an auction without reserve, the contract-forming roles of the parties are

inverted from those in an auction with reserve: the seller (and the seller’s agent, the

auctioneer) “becomes an offeror, and each successively higher bid creates a contingent

acceptance, with the highest bid creating an enforceable contract.” Id. As one court stated,

                     The words “without reserve” as used in auctions are
              words of art, assuring prospective bidders that the property will
              actually go to the bidder offering the highest price. The seller
              may not nullify this purpose by bidding himself or through an
              agent, nor by withdrawing the property from sale if he is not
              pleased with the bids. Thus, the seller may not refuse to accept
              a bid where the auction is without reserve; the bid itself
              establishes a right in the bidder to have the property unless
              someone else by raising his bid succeeds to his right.

Zuhak v. Rose, 58 N.W.2d 693, 696 (Wis. 1953). Stated differently,

              When an auction is “without reserve” or “absolute,” a seller
              makes an offer to sell when the seller advertises the sale and it
              is up to the bidder to accept. The seller is the offeror and the
              bidder is the offeree. A contract is formed with each bid, and
              the seller may not withdraw the property once any legitimate
              bid has been submitted, but is absolutely committed to the sale
              once the bid has been entered.

Washburn v. Thomas, 37 P.3d 465, 467 (Colo. App. 2001). See also, Pitchfork Ranch, 615

P.2d at 548-49 (“[I]n the no-reserves auction, the contract is consummated with each bid,


                                             12
subject only to a higher bid being received. This is so because the seller makes his offer to

sell when he advertises the sale will be a no-reserves sale to the highest bidder. Once the

first bid has been received, the only acceptance which forms a binding agreement is the

one offered by the highest bidder. . . In the no-reserves situation, the seller is absolutely

committed to the sale once a bid has been entered, no matter what the level of bidding or

the seller’s notion of the property’s true value.”); 7 AM. JUR. 2D Auctions and Auctioneers

§ 36 (“The words ‘without reserve’ as used in auctions are words of art, as showing

prospective bidders that the property will actually go to the bidder offering the highest

price, and the seller may not nullify this purpose by bidding himself or through an agent,

or by withdrawing the property from sale if he is not pleased with the bids.”).
                                                                                   4




              The drafters of the RESTATEMENT (SECOND) OF CONTRACTS succinctly
              4


summarized the above-stated contract-formation rules for auctions:

              At an auction, unless a contrary intention is manifested,

                     (a) the auctioneer invites offers from successive bidders
                     which he may accept or reject;

                     (b) when goods are put up without reserve, the
                     auctioneer makes an offer to sell at any price bid by the
                     highest bidder, and after the auctioneer calls for bids the
                     goods cannot be withdrawn unless no bid is made within
                     a reasonable time;

RESTATEMENT (SECOND) OF CONTRACTS § 28(1) (1981). The comments note that these
rules “reflect the usual understanding at an auction sale,” including the presumption that
auctions are conducted with a reserve unless a contrary intention is announced or otherwise
manifested. Id., cmt. a.

                                             13
              In the case at bar, the defendant advertised the May 2016 auction as an

“absolute sale.” The term “absolute auction” is synonymous with an “auction without

reserve.” See, e.g., Marten, 543 N.W.2d at 443. In 2019, the Legislature amended its

statutes regulating auctioneers and adopted the following definition for an absolute auction:

                     “Absolute auction” means the sale of real or personal
              property at auction whereby every item offered from the block
              is sold to the highest bidder without reserve and without the
              requirements of a minimum bid or other conditions which limit
              the sale other than to the highest bidder.

W.Va. Code § 19-2C-1(a) (2019). 5


              To summarize, we find the following guidelines generally govern auction

sales, unless a different intention is manifested. We hold that when real or personal

property is sold in an auction with reserve, the auctioneer (as agent of the seller) invites

offers from successive bidders which the auctioneer may accept or reject until the

auctioneer announces the completion of the sale. A bid is the equivalent of an offer to buy

the property, and no contract is formed until the auctioneer manifests final acceptance of


              5
                While the Legislature’s definition in West Virginia Code § 19-2C-1(a)
provides us with guidance, we note that the statutory definition was not in effect when the
defendant conducted its May 2016 auction. Moreover, neither party has argued for the
retroactive application of the statute.

               Furthermore, in addition to defining an “absolute auction,” in 2019 the
Legislature also adopted a provision stating, “It is unlawful to conduct or advertise that an
auction is absolute if minimum opening bids are required or other conditions are placed on
the sale that limit the sale other than to the highest bidder.” W. Va. Code § 19-2C-10
(2019). In the instant case, the defendant advertised the May 2016 auction as “absolute”
but simultaneously required a minimum opening bid of $200,000. The defendant’s
advertisement would now appear to be prohibited by law.

                                             14
the bid. In an auction with reserve, the property will not be sold unless the highest bid is

equal to or exceeds a minimum price. In addition, we hold that when real or personal

property is sold at an auction, the sale is presumed to be with reserve unless the seller

announces that the property is to be sold without reserve.


              We further hold that when real or personal property is sold at an auction

without reserve (also called an “absolute auction”), the auctioneer (as agent of the seller)

makes an offer to sell at any price bid by the highest bidder, and the offer is accepted and

a contract is formed with each higher bid placed by a buyer. Once the auctioneer calls for

bids, the property cannot be withdrawn from the auction. In an auction without reserve,

the property will be sold to the highest bidder and no minimum price or other condition

will limit bidding.


              In the instant case, the defendant’s pre-auction advertising and catalog

obscured whether its auction was to be conducted “with reserve” or “without reserve.” On

the one hand, the pre-auction documents required a minimum opening bid of $200,000,

language which indicates an intent to conduct an auction with reserve. On the other hand,

the pre-auction documents announced, in large, bold lettering, that the defendant was

conducting an “Absolute Sale,” language which indicates that the defendant intended to




                                            15
hold an auction without reserve, and to sell the property to the highest bidder without the

requirement of a minimum bid. 6


              The circuit court examined the ambiguous language of the defendant’s pre-

auction advertising and catalog, and concluded that, “even if an auction begins as one that

is ‘with reserve,’ that is, has a minimum bid, once the minimum bid is reached, if it is then

advertised as an ‘absolute’ auction, it then becomes an absolute auction.” The circuit court

reasoned that “when an auction is advertised as an absolute auction once a condition

precedent of a minimum bid has been satisfied, it becomes an absolute auction once the

minimum bid is reached.” In conclusion, the circuit court found that the defendant had

conducted an absolute auction such that, once anyone met the condition precedent and

offered the minimum bid of $200,000, the auctioneer was required to sell the property to

the highest bidder. The defendant challenges this finding by the circuit court and insists

that the auction was conducted solely as an auction “with reserve” and that the “absolute

sale” language in its advertisements and catalog has no meaning.


              After reviewing the defendant’s advertisements and catalog, we find no error

in the circuit court’s conclusion. In Dry Creek Cattle Company v. Harriet Brothers

Partnership, 908 P.2d 399 (Wyo. 1995), the Supreme Court of Wyoming addressed a




                As we noted supra in footnote 5, as of June 7, 2019, West Virginia’s auction
              6


law now provides that “[i]t is unlawful to conduct or advertise that an auction is absolute
if minimum opening bids are required or other conditions are placed on the sale that limit
the sale other than to the highest bidder.” W.Va. Code § 19-2C-10.

                                             16
situation like that in the instant case. An auction house had advertised the sale of a ranch

as a “Minimum Bid – Absolute Auction.” The Dry Creek court examined all of the

language in the advertisement, and found each word had to be given meaning and could

not be taken out of context. See, e.g., Syllabus Point 6, Columbia Gas Transmission Corp.

v. E. I. du Pont de Nemours & Co., 159 W. Va. 1, 217 S.E.2d 919 (1975) (“Each word in

a contract is presumed to have a unique meaning and, thus, no word or clause is to be

treated as a redundancy, if any meaning reasonable and consistent with other parts can be

given to it.”). Like the circuit court in this case, the Dry Creek court concluded the

ambiguous advertisement was “grammatically apt to convey the proposition that a

minimum bid must be received for all of the parcels before the auction would move to an

absolute sale. The legal effect is that this auction was one with reserves until that condition

was satisfied[.]” Dry Creek, 908 P.2d at 403.


              The language used by the defendant in its advertising and catalog clearly

indicates a requirement of a minimum bid of $200,000, and just as clearly indicates an

intent that the defendant was conducting an absolute auction. Reading the advertisement

as a whole, we conclude that the defendant announced an intention to hold an absolute

auction with one condition precedent: that no bid would be accepted below $200,000.

However, once that condition was satisfied, the legal effect was that the auction was

conducted without a reserve and was absolute. In other words, in the advertisements and

catalog, the defendant auctioneer (as agent for the seller) made an offer to sell the property




                                              17
for any bid of $200,000 or more to the highest bidder, and a contract was formed with each

bid placed by a buyer.


              The defendant asserts, however, that the circuit court erred in finding that the

advertisements and catalog had any contractual effect on the sale of the property.

Furthermore, the defendant argues that because an auction is an open sale, the general rule

is that anyone (like Mr. Lerch) is qualified to be a bidder. As we understand the defendant’s

position, once an offer is made and accepted at an auction and a contract is formed, the

question raised is this: does that contract incorporate the terms and conditions of the auction

advertisements? In the context of this case, does the contract incorporate the auctioneer’s

advertised requirement that potential bidders meet certain conditions before being qualified

to bid? And do those terms and conditions bind a seller and auctioneer?


              The law is clear that “[i]t is the right of the owner of property sold at auction

to prescribe, within reasonable limits, the manner, conditions, and terms of sale.” Coleman

v. Duncan, 540 S.W.2d 935, 938 (Mo. App. 1976). See also, Love v. Basque Cartel, 873

F. Supp. 563, 570 (D. Wyo. 1995) (“The owner of the property offered for sale has the

right to prescribe the manner, conditions and terms of the sale.”). These terms and

conditions are announced to potential bidders in two ways: through advertisements,

publications, and catalogs distributed before an auction, or oral announcements by the

auctioneer at the start of the auction. See RESTATEMENT (SECOND) OF CONTRACTS § 28,

cmt. e (“The terms on which goods are to be sold at auction are often made known in

advertisements or catalogues or posted at the place where the auction is to be held.”). See,

                                              18
e.g., In re C. Schmidt Co., 158 B.R. 717, 719 (Bankr. S.D. Ohio 1993) (“As is invariably

the case in such sales, the public was informed about the terms of the sale by means of the

bid package referred to above.”); Cont’l Can Co. v. Commercial Waterway Dist. No. 1 of

King Cty., 347 P.2d 887, 888-89 (Wash. 1959) (“The conditions of sale may be

incorporated in an advertisement of the auction[.]”); Zuhak v. Rose, 58 N.W.2d 693, 696

(Wis. 1953) (Seller “was responsible for informing plaintiff[-bidder] by the Tribune

advertisement, by circulars distributed at the auction and by the auctioneer’s oral

announcement, that there was to be a complete liquidation of all the advertised property

without reserve, and that the realty would be sold as a whole or piecemeal, whichever

brought the most money.”).


              The law is also clear that a bidder is generally bound by the published or

announced terms and conditions of an auction, even if the bidder did not see or hear those

terms and conditions. However, “[i]mplicit in this statement is its reciprocal—that if the
                     7




              7
                See, e.g., Hessel v. Christie’s Inc., 399 F. Supp. 2d 506, 514 (S.D.N.Y.
2005) (“Courts in this District have held that by placing a bid in an auction, the bidder
‘consent[s] to be bound by the terms in the catalog governing the auction.’”); In re Wilson
Freight Co., 30 B.R. 971, 975 (Bankr. S.D.N.Y. 1983) (“Moreover, the terms and
conditions of the sale announced by Mr. Parks, the auctioneer, and Mr. Solarsh were
binding on Wes-Flo regardless of whether its bidder, Art Perry, knew or heard them.”);
Pitchfork Ranch, 615 P.2d at 553 (“The buyer may rely upon such announced terms and
conditions of the sale, and he is likewise bound thereby, whether present at the time of the
announcement or has knowledge thereof.”); Matter of Premier Container Corp., 408
N.Y.S.2d 725, 730 (Sup. Ct. 1978) (“The conditions of a public sale, announced by the
auctioneer at the time and place of the sale, are binding on the purchaser, whether or not
he knew or heard them.”); Coleman v. Duncan, 540 S.W.2d 935, 938 (Mo. App. 1976)
(“Usually the auctioneer . . . announces these terms and conditions which, when so
announced, are generally deemed . . . to bind the purchaser even though he did not hear or
                                                                             Continued . . .
                                            19
buyer is entitled to rely on the terms of the auction, then the seller is also bound by the

terms which he has set.” Love v. Basque Cartel, 873 F. Supp. at 570. The general rule is

that when a seller (or the seller’s agent, the auctioneer) establishes terms and conditions

for an auction in an advertisement or publication prior to an auction, those terms and

conditions are thereafter binding upon both the seller and any bidder; any bid placed at the

auction incorporates those terms and conditions unless there has been an effective

modification by the auctioneer.      As the drafters of the RESTATEMENT (SECOND) OF

CONTRACTS stated:

                     Unless a contrary intention is manifested, bids at an
              auction embody terms made known by advertisement, posting
              or other publication of which bidders are or should be aware,
              as modified by any announcement made by the auctioneer
              when the goods are put up.

RESTATEMENT (SECOND) OF CONTRACTS § 28(2). Accord 7 AM. JUR. 2D Auctions and

Auctioneers § 14. See also, Ley Indus., Inc. v. Charleston Auctioneers, 603 N.E.2d 1037,

1040 (Ohio App. 1991) (“The terms of the contract are understood to be those presented in

the solicitations for bids published in the relevant advertisement or legal notice prior to the

auction, or as modified by the auctioneer before bids are submitted. . . . Accordingly, the

legal notice or advertisement, containing the description of the property and the other

relevant terms of sale, along with the buyer’s bid presented in written form, would



understand the announcement, or was not present at the time of the announcement and such
terms (or conditions) were not brought to his actual attention.”); Moore v. Berry, 288
S.W.2d 465, 468 (Tenn.App. 1955) (“It seems to be a settled rule in this state as well as
elsewhere that conditions prescribed by the seller or owner and announced at the time and
place of the auction are binding on the purchaser whether or not he knew or heard them.”).

                                              20
constitute the parties’ contract.”); Holston v. Pennington, 304 S.E.2d 287, 290 (Va. 1983)

(“It is generally held that an advertisement of a forthcoming auction obligates the owner to

conduct a bona fide sale in accordance with the advertised terms[.]”); Schwartz v. Capital

Sav. & Loan Co., 381 N.E.2d 957, 959 (Ohio Ct. App. 1978) (“A person responding to an

advertisement that an auction sale will be held has a right to rely upon the representations

made therein and that the advertisement is made in good faith[.]”); Johnson v. Haynes, 532

S.W.2d 561, 565 (Tenn. Ct. App. 1975) (“[W]here the right to reject bids is not stated in

the printed posters, nor is it announced at the sale, that right cannot be asserted [by the

seller] after the bid is accepted by the fall of the hammer or other act of acceptance by the

auctioneer.”); Kivett v. Owyhee Cty., 74 P.2d 87, 91 (Idaho 1937) (“Printed conditions

under which a sale proceeds are binding on both buyer and seller[.]”); Whitfield v. May, 89

S.W.2d 764, 768 (Tenn. Ct. App. 1935) (“Printed conditions under which a sale proceeds

are binding on both the buyer and seller[.]”); Erie Coal & Coke Corp. v. United States, 266

U.S. 518, 520 (1925) (“The terms and conditions of the sale as set forth in the advertisement

were binding alike upon [the seller] the United States and the bidders.”); 7A C.J.S. Auctions

and Auctioneers § 21 (“The purchaser is entitled to rely on the terms prescribed and on the

announcement made by the auctioneer at the time and place of the sale as to the identity of

the property, the terms and the conditions of sale.”); 1 WILLISTON ON CONTRACTS § 4:12




                                             21
(“Thus, ordinarily, terms and conditions published in the advertisements of the auction or

announced at the commencement of the sale typically are binding on the parties.”). 8


              An auctioneer or seller may include in the published terms and conditions of

an auction a requirement that, before a potential buyer may place a bid, the buyer must

make a deposit. “An auctioneer conducting an auction sale may, in a proper case, require

a bidder to deposit or furnish a reasonable security as a condition of the acceptance and

reporting of his or her bid.” 7A C.J.S. Auctions and Auctioneers § 23 (2020). However,

it is an axiom that public policy requires bidding at auctions to be open, free, and

competitive, so that both bidders and the property owner receive the highest but fairest



              8
                 We note that in some jurisdictions, the auctioneer may verbally announce
alterations to the terms and conditions published prior to the auction in advertisements or
a catalog. In other jurisdictions, the printed conditions cannot be altered by oral statements
of the auctioneer at the time of sale; instead, the previously published conditions may only
be explained. See generally, 7 Am. Jur. 2d Auctions and Auctioneers § 18 (In some
jurisdictions, “[t]he terms made known by the announcement, posting, or other publication
may be modified by any announcement made by the auctioneer when the goods are put up.
Others take the view that the printed terms may not be varied or contradicted by parol
evidence of the verbal statements made by the auctioneer at the time of the sale, although
it is otherwise where the oral declarations are not repugnant to, or inconsistent with, the
advertisements or notices, but are merely explanatory.”); 7A C.J.S. Auctions and
Auctioneers § 24 (“Jurisdictions vary as to whether printed conditions are binding on the
parties and the auctioneer’s right to verbally vary or explain such conditions at the sale.”).

               While this question has not been resolved by this Court, we need not address
it in this case because the record is clear that the defendant’s auctioneer made no oral
statements attempting to change the pre-auction printed terms and conditions. The record
shows that the pre-auction advertisements and catalog required any prospective bidder to
place a deposit, produce a “Bank Letter of Guarantee,” and sign a “Bidders Registration
Agreement.” The defendant’s auctioneer made no announcement at the auction altering
these terms and conditions.

                                             22
price through competitive bidding. See, e.g., Syllabus Point 2, Henderson v. Henrie, 61

W.Va. 183, 56 S.E. 369 (1907) (“But all contracts for the purpose of suppressing and

chilling competitive bidding upon property offered for sale at public auction, in order to

obtain it at under value, or to obtain undue and unconscientious advantages, are fraudulent

and void, and will not be enforced[.]”); Syllabus Point 1, Peck v. List, 23 W.Va. at 338 (“If

the owners of goods or of an estate put up for sale at auction by his direction employ one

or more puffers to bid for him, it is a fraud on the real bidders, and the highest bidder cannot

be compelled to complete the contract.”); Syllabus Point 2, Hilleary & Johnson v.

Thompson, 11 W.Va. 113 (1877) (“An auctioneer or crier making a sale cannot properly

act for himself, or any other person in bidding for the property.”).


              Hence, “[b]ecause of the general principle that all the bidders must stand

upon an equal footing,” an auctioneer cannot vary the announced terms of the sale as to

any one bidder to the detriment of the other bidders. 7 Am. Jur. 2d Auctions and

Auctioneers § 17. “It is of the essence of an auction that there shall be full and free

opportunity for competition among bidders. So true is this that any agreement unfairly

restrictive of that opportunity is against public policy and void.” Manhattan Taxi Serv.

Corp. v. Checker Cab Mfg. Corp., 171 N.E. 705, 707 (N.Y. 1930). “[B]y placing a bid in

an auction, the bidder ‘consent[s] to be bound by the terms in the catalog governing the

auction,’” Hessel, 399 F.Supp.2d at 514, and “any bid not in conformity with the terms

and conditions of sale as advertised and announced by the auctioneer is not entitled to

consideration.” 7 AM. JUR. 2D Auctions and Auctioneers § 32.


                                              23
              In summary, we find that the law guiding our decision is well established.

We hold that the seller of property sold at auction may prescribe, within reasonable limits,

the terms and conditions of the sale. A bidder at an auction is generally bound by the

published or announced terms and conditions of an auction, even if the bidder did not see

or hear those terms and conditions. When a seller (or the seller’s agent, the auctioneer)

establishes terms and conditions for an auction of property in an advertisement or

publication prior to an auction, those terms and conditions are thereafter binding upon both

the seller and any bidder. Any bid placed at the auction incorporates those terms and

conditions unless there is an effective modification. Finally, as a general principle, all the

bidders at an auction must stand upon an equal footing. Accordingly, an auctioneer cannot

vary the announced terms of the sale as to some bidders, or any one bidder, to the detriment

of the other bidders.


              In the instant case, the record shows that the defendant (on behalf of the

owner of the property sold at auction) placed advertisements and published a catalog that

prescribed terms and conditions of the auction sale. Those advertisements and catalog

required any prospective bidder to present a $20,000 deposit; to provide a bank letter

guaranteeing the prospective bidder could complete the purchase; and to sign a “Bidders

Registration Agreement.” The plaintiff knew of these terms, was legally bound to comply

with the terms, and did comply with the terms. The record is also clear that Mr. Lerch did

not post a deposit, did not provide a letter of guarantee, and did not sign a bidder’s

registration agreement, and so did not comply with the advertised terms and conditions of


                                             24
the auction. When the defendant posted those terms in its advertisements and catalog, those

terms became binding upon the defendant. Any bid at the auction was required to

incorporate those terms, and the defendant could not fairly, and without announcement,

require those terms for the plaintiff while waiving those same terms for Mr. Lerch.

Fundamental principles of fairness required the defendant to treat the plaintiff and Mr.

Lerch equally, and to have disclaimed any bid by Mr. Lerch when it became clear to the

auctioneer that he had not met the pre-auction requirements to qualify to bid. Accordingly,

the circuit court correctly found it was improper for the defendant to vary the announced

terms of the sale for Mr. Lerch to the detriment of the plaintiff.


               As the defendant’s auctioneer admitted in a deposition, had Mr. Lerch not

been permitted to bid, the property would have been sold to the plaintiff for $200,000. The

circuit court, therefore, correctly ordered that the defendant permit the plaintiff to purchase

the property for that price.


               The record presented shows that no genuine issue of material fact existed to

be tried regarding the formation of a contract between the plaintiff and the defendant, and

the defendant’s failure to comply with the terms and conditions of that contract. No inquiry

concerning the facts would clarify the application of the law. Hence, we find no error in

the circuit court’s decision in favor of the plaintiff.




                                               25
                                    IV. Conclusion

             The circuit court’s April 5, 2018, order correctly granted summary judgment

to the plaintiff and denied summary judgment for the defendant.


                                                                              Affirmed.




                                          26
