49 N.C. App. 674 | N.C. Ct. App. | 1980
Assuming arguendo that Chears is the real party in interest, and that the three-year statute of limitations, G.S. 1-52, does not bar the action to recover the commissions in question, we still affirm the trial court’s order of summary judgment 'in favor of the original defendants.
G.S. 1A-1, Rule 56, requires that a motion for summary judgment be rendered when the pleadings, affidavits, depositions, interrogatories and admissions show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. The party moving for summary judgment, here Associates, has the burden of proving that there is no triable issue of fact. Railway Co. v. Werner Industries, 286 N.C. 89, 209 S.E. 2d 734 (1974). See: Investments v. Housing, Inc., 292 N.C. 93, 232 S.E. 2d 667 (1977), and cases cited therein. Once the movant satisfies this burden the adverse party, here Chears, must show that there is some genuine issue of fact for tria!. G.S. 1A-1, Rule 56(e); Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).
Chears submitted no evidentiary materials in opposition to the original defendant’s motion for summary judgment. He relies on the materials submitted by Associates and on his own pleadings.
The pleadings and evidence before the court show only that Associates and Chears had an oral agreement to split the commissions received from the sale of the Reynolds Tract to Village Development. There is no evidence of any agreement between the parties that Associates be obligated to pay Chears one-half of the anticipated full commission of $55,000 even in the event that only a portion of the full commission was received.
There are no North Carolina cases on point, but many cases from other jurisdictions support the proposition that the right to share in commissions under an agreement between brokers tp divide commissions does not arise until the commissions have actually been received by the broker charged with liability. See: 71 A.L.R. 3d 586 (1976); 12 C. J.S. Brokers § 81. This appears to us to be sound reasoning which brings about a practical result. We adopt this majority view.
The evidence in the case sub judice is uncontradicted that Associates did pay to Chears his fair share of the commissions actually received. It also shows that the buyer of the subject property defaulted on its obligation to the seller which resulted in the reconveyance of the property to the seller. No additional commission payments would be forthcoming from the principal.
Chears has failed to raise any issue of fact as to the nature of the agreement in question, nor has he raised any issue of fact as to Associates’ full compliance with that agreement. Therefore, the order granting the motion for summary judgment is
Affirmed.
