Brown v. Fulford , 60 N.C. App. 499 ( 1983 )

VAUGHN, Chief Judge.

The sole issue is whether the trial court erred in granting defendant’s motion for summary judgment. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c). The purpose of summary judgment is to bring litigation to an early decision on the merits without the delay and expense of trial where it can be shown that no material facts are at issue. Kessing v. National Mortgage Corporation, 278 N.C. 523, 180 S.E. 2d 823 (1971). Under Rule 56, the following evidence may be considered: admissions in the pleadings, depositions on file, answers to interrogatories, admissions on file, affidavits, and any other material which would be admissible in evidence or of which judicial notice may be taken. Jernigan v. State Farm Mutual Automobile Insurance Company, 16 N.C. App. 46, 190 S.E. 2d 866 (1972); 10 Wright and Miller, Federal Practice and Procedure § 2724 (1973). Plaintiffs contend that summary judgment was improperly granted because there were two material facts at issue: whether Fulford had an interest in the property and whether the plaintiffs needed to be the procuring cause of the sale to United States Development Corporation to entitle them to a commission. Regarding Fulford’s interest in the property, it is undisputed that he had paid $165,000.00 for his option. When he assigned the option to Lang, and Lang purchased the property, Fulford paid an additional $400,000.00 and Lang paid $785,000.00. Thus, although title was in Lang’s name, Fulford had invested $565,000.00. Lang obviously thought Fulford had an interest in the property. In his deposition he said:

A deed was made from Wachovia Mortgage Company to me dated the 20th day of March, 1978. . . . We bought the property. . . . When I am talking about “we” I mean Dr. Fulford and myself. We had to get it done before 5:00. Dr. Fulford and I bought the property but it was put in my name. ... I would get my expenses back and he would get his costs back and we would split the profit.

Lang said that he offered the property to Fulford for $1,200,000.00 because Fulford already “owned part of the property.” He also said “Dr. Fulford had a vested interest in this property. . . .”

Although Lang held legal title, Fulford held an equitable interest. For example, had he needed to enforce his interest, it had all the factors required for a purchase money resulting trust which is defined as follows: When one person pays for land but title is taken in another, a resulting trust commensurate with his interest arises in favor of the one who furnished the consideration. Cline v. Cline, 297 N.C. 336, 255 S.E. 2d 399 (1979). Although Fulford strenuously argues that he never had an interest in the property, other than an option, clearly there is evidence from which the jury could find that he had an interest in the property.

Fulford next contends that plaintiffs were not a procuring cause of the sale to United States Development Corporation, and they are not entitled to a commission as a matter of law. In general, a broker with whom an owner’s property is listed becomes entitled to a commission whenever he procures a party who actually contracts for the purchase of the property at a price acceptable to the owner. Cromartie v. Colby, 250 N.C. 224, 108 S.E. 2d 228 (1959). See Webster’s Real Estate Law in North Carolina § 130 (Hetrick ed. 1981). “The broker is the procuring cause if the sale is the direct and proximate result of his efforts or services.” Realty Agency, Inc. v. Duckworth & Shelton, Inc., 274 N.C. 243, 251, 162 S.E. 2d 486, 491 (1968); Accord Cooper v. Henderson, 55 N.C. App. 234, 284 S.E. 2d 756 (1981).

In this case, however, the contract between the parties provided: “I [Fulford] reserve the right to sell the property to a buyer procured by myself or through another agent and in such case no commission or other charge shall be due you, provided such sale or transfer is not made directly or indirectly to or through your [Strout Realty, Inc.] prospect.” (Emphasis added.) Thus, even if plaintiffs were only a indirect cause of the sale, they would be entitled to their commission under the terms of the contract. According to plaintiff Brown’s affidavit, he arranged the first meeting between Fulford and the eventual buyers of the property, which is some evidence that plaintiffs were at least an indirect cause of the sale.

Plaintiffs contend that the trial court erred in failing to consider Irvin Staton’s handwritten statement on the motion for summary judgment. Since we find that summary judgment was improperly granted, there is no need to address that question.

Reversed and remanded.

Judges Wells and Whichard concur.