Appellee/defendant Hudson & Marshall, Inc., an auction company, auctioned a 775 acre farm owned by Jane Shaw “Shaw” individually, and the remainder by Shaw and her husband John Shaw jointly, at a public auction under separate written contracts entered into with each in February 1998. Appellant/plaintiff Larry Moss attended the April 4, 1998 auction and was the high bidder on a portion of the real property owned by Shaw. However, after the bidding was closed by the fall of the auctioneer’s hammer, Hudson & Marshall told Moss that the sale of the property could not be consummated because Shaw had declined to confirm the sale. Moss sued Shaw and Hudson & Marshall for damages, averring breach of contract, breach of warranty of authority, fraud, unfair or deceptive business practices, and entitlement to the award of litigation expenses under OCGA § 13-6-11; Shaw cross-claimed against Hudson & Marshall for breach of duty as her agent, this subject to her liability in the trial of the main case. Hudson & Marshall filed its motion for summary judgment against Moss on the issue of liability. Moss thereafter amended his complaint to add counts averring civil conspiracy and tortious interference with contractual relations. Moss appeals from the Bibb County Superior Court’s grant of summary judgment for Hudson & Marshall, contending that a contract for the sale of the property was formed at the time the auctioneer’s hammer fell and that Hudson & Marshall is liable for breach thereof. Finding that Shaw explicitly reserved the right to accept or reject Moss’ successful bid and that no contract was formed, we affirm. The February 1998 agreement as between Hudson & Marshall and Shaw authorized Hudson & Marshall to auction Shaw’s property “subject to a reserve price of $750,000.” Further, the agreement granted Hudson & Marshall authority to sign any memorandum of sale on behalf of Shaw and to receive the purchase price for the property or a 15 deposit thereon from the purchaser to bind the purchaser until closing. It is undisputed that the promotional material for the auction provided no additional reservation of right in the seller; that Moss as high bidder on Shaw’s property met her reserved price; that Shaw did not sign the memorandum of sale prepared by Hudson & Marshall memorializing Moss’ high bid on the property immediately after the auction; that, in a further agreement with Hudson & Marshall entered into on April 10, 1998, Shaw made her agreement to sell her property for $750,000 contingent upon the sale of her husband’s property and her property in an amount sufficient to “pay off his bank obligations of approximately $500,000. In other words, all properties must realize $1,250,000″; that, on June 5, 1998, in a transaction brokered by Hudson & Marshall, Shaw sold her property to a third party; and that by letter, dated June 10, 1998, Hudson & Marshall notified Moss that it had been unable to secure Shaw’s acceptance of his high bid on her property at the April 4 auction. However, by their affidavits in support of and against summary judgment, the parties part company on the issue of whether Hudson & Marshall’s auctioneer announced before the start of the auction that successful bids were subject to a right of confirmation, i. e., a reservation of right in the seller to accept or reject the successful bids after the auction. Held :
On motion for summary judgment under OCGA § 9-11-56, the movant may prevail by 1 submitting evidence which negatives an essential element of the plaintiff’s case, or 2 showing the absence of evidence supporting the case as to any essential element. Caven v. Warehouse Furnishings Distrib. , 209 Ga. App. 706 434 SE2d 532 1993. If this burden is discharged by the movant, the nonmovant cannot rest on its pleadings, but instead must come forward with specific evidence giving rise to a triable issue. Speir v. Krieger , 235 Ga. App. 392, 397 2 509 SE2d 684 1998.
