## Facts

- Richard Bergey submitted a written offer to purchase a bank-owned residential property listed for sale by HSBC Bank USA through its listing agent, Tracy Jones.
- The offer stated that it would become a binding agreement only “upon written acceptance.”
- After receiving multiple offers, Jones requested “highest and best” offers; Bergey submitted an all-cash offer slightly lower than another buyer’s higher-priced offer that initially included a financing contingency.
- HSBC instructed Jones to accept Bergey’s all-cash offer, and Jones emailed Bergey’s agent stating that Bergey’s offer had been accepted and that addenda and closing instructions would follow.
- The competing buyers later indicated they could proceed without financing; HSBC instructed Jones to withdraw the earlier acceptance and accept the competing, higher all-cash offer.
- HSBC sold the property to the competing buyers; Bergey later bought the property from them but pursued damages against HSBC and Jones.

## Issues

1. Whether the listing agent’s email could constitute the “written acceptance” required by the offer and provide a sufficient writing, when combined with related documents, to satisfy the statute of frauds for a real-estate contract.
2. Whether genuine issues of material fact existed on acceptance and agent authority, making summary judgment improper.
3. Whether claims premised on the existence of a contract could be dismissed solely on a no-contract determination at summary judgment.

## Decision

- The court of appeals reversed the trial court’s grant of summary judgment for HSBC and Jones and remanded.
- The record permitted a factfinder to conclude that HSBC, through its agent, accepted Bergey’s offer.
- The email acceptance, considered with the written offer and related documents, could constitute a sufficient memorandum to satisfy the statute of frauds.
- Disputes concerning acceptance, the sufficiency of the writings, and the agent’s authority created triable issues.
- Because a contract could be found, the no-contract rationale could not support dismissal of the related tort and equitable claims at the summary-judgment stage.

## Legal Principles

- A real-estate contract must satisfy the statute of frauds through a signed writing or writings that identify the parties, property, and essential terms.
- Multiple writings may be read together to satisfy the statute of frauds if they collectively contain the essential terms and are sufficiently connected.
- An email sent by an authorized agent can constitute a “written acceptance” and may function as a signature for statute-of-frauds purposes when it clearly communicates assent and identifies the sender.
- Summary judgment is improper when the documentary record permits competing reasonable inferences on contract formation and agency authority.

## Conclusion

The appellate court held that the evidence, including an agent’s acceptance email and the written offer, could satisfy the written-acceptance requirement and the statute of frauds, creating genuine issues of material fact on whether an enforceable purchase contract existed; the case was remanded for further proceedings.


Bergey v. HSBC Bank USA, 2010-Ohio-2736 (Ohio Ct. App. 9th Dist. 2010)