An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-77


Filed: 18 March 2003


v .                             Johnston County
                                No. 99 CVS 00226

    Appeal by plaintiffs from judgment entered 29 February 2000 by Judge Knox V. Jenkins in Johnston County Superior Court. Heard in the Court of Appeals 21 January 2003.

    Lucas, Bryant, Denning & Edwards, P.A., by W. Robert Denning, III, for plaintiff-appellants.

    George B. Currin for defendant-appellees.

    EAGLES, Chief Judge.

    Century 21 Heritage, Inc., Paulette Ricks, and Von Bradshaw (“plaintiffs”) appeal from grant of summary judgment denying VonBradshaw (“Bradshaw”) a real estate commission for the sale of property. After careful consideration of the briefs and record, we affirm.
    The defendants are the “Robert Wilder heirs,” the “Hubert Wilder heirs,” and Robena Sapp Smith. The defendants were the owners of adjoining tracts of land on Rand Road in Wake County. The “Robert Wilder heirs” owned approximately 65 acres, the “Hubert Wilder heirs” owned approximately 22 acres and Smith owned approximately 20 acres. The defendants each entered into listing agreements with plaintiffs which were effective from 9 May 1995 through 15 November 1995. Bradshaw, a sales associate for Century 21 Heritage, met with John Johnson (Johnson) and Lanny Clifton (Clifton) about purchasing the defendants property. Clifton, Johnson, and Linwood Jones were the shareholders of Southwind Development Co., Inc. (“Southwind”), a North Carolina corporation. Southwind entered into a “Land Contract,” dated 29 August 1995, with the defendants to purchase the property. The contract provided that Southwind and Benson Enterprises, Inc. were the “Purchasers.” At the time the contract was executed, Johnson and Clifton had bought out Jones' interest in Southwind. The terms of the “Land Contract” provided that it could be terminated by either party if the terms of the contract were not met. The contract stated that “[p]urchaser agrees that beginning ninety (90) days from the date of this Contract, that the Purchaser will purchase a minimum of thirty (30) lots per year, at Ten Thousand ($10,000.00) Dollars per lot for cash, until all of the property has beenpurchased by Purchaser.” Southwind and Benson never purchased any of the lots. The defendants terminated the “Land Contract” by letter dated 23 January 1997.
    According to Clifton, Southwind “merged” with Son-Lan Development Co., Inc. (“Son-Lan”). The two shareholders of Son-Lan are Clifton and Johnson. On or about 10 February 1997, Clifton and the Wilder heirs met to discuss the sale of the property. Joseph Calder (“Calder”) prepared a contract for sale of the property to Son-Lan. The “Robert Wilder heirs,” the “Hubert Wilder heirs,” and Robena Sapp Smith signed this contract in February and March 1997 but neither Clifton nor Johnson, on behalf of Son-Lan, ever signed the contract.
    In the late spring or early summer of 1997, Clifton and Johnson, in need of additional money, contacted John G. Blankenship, Jr. (“Blankenship”) about his interest in becoming involved in developing a subdivision. Clifton, Johnson and Blankenship formed Son-Lan Blankenship Development Co., Inc. (“Son- Lan Blankenship”), a North Carolina corporation and purchased the property in October 1997.
    Plaintiffs commenced this action seeking commission for the sale of the property. Plaintiffs alleged that “any procurement of Son-Land [sic] was the result of the efforts of the Plaintiff” and “[t]hat pursuant to the [listing] contract, the [defendants] owe a duty to Plaintiffs to pay the EIGHT PERCENT (8%) commission based upon the sales price and there exist facts showing that there is a breach of said contract by the Defendants.” The defendants movedfor summary judgment which was heard at the 31 January 2000 Civil Session of Johnston County Superior Court before Judge Knox V. Jenkins. The trial court granted summary judgment for the defendants. Plaintiffs appeal.
    On appeal, plaintiffs contend that the trial court erred in granting summary judgment in favor of the defendants because the “plaintiffs were the procuring cause of the contract to purchase signed August 29, 1995, and the ultimate sell [sic] of the property to Son-Lan Blankenship, Inc.” After careful consideration, we disagree.
    Plaintiffs contend that Bradshaw is entitled to a real estate commission because of his procurement of the 29 August 1995 “Land Contract” between Southwind and the defendants. Plaintiffs argue that Johnson and Clifton were principals of Southwind and of the ultimate purchaser, Son-Lan Blankenship. Plaintiffs contend that because Bradshaw introduced Clifton and Johnson to the property and Southwind signed a contract to purchase the property, he is entitled to the commission since Clifton and Johnson were involved with the ultimate purchasers of the property. We do not agree.
    “Summary judgment is appropriate if (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.” Gaunt v. Pittaway, 135 N.C. App. 442, 447, 520 S.E.2d 603, 607 (1999). “The moving party bears the burden of showing that there are no genuine issues of materialfact.” Carolantic Realty, Inc. v. Matco Grp., Inc., 151 N.C. App. 464, 467, 566 S.E.2d 134, 136 (2002). “When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.” Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001). “[T]he non-movant, in order to avoid summary judgment against him, 'may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.'” Holloway v. Wachovia Bank and Trust Co., 339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (quoting N.C.R. Civ. P. 56(e)).
    Here, the listing agreement stated that:
        3.    Owner agrees to pay Agent a fee of 8%, which shall be computed on the gross sales price of the Property, OR, $ N/A:

            a.    If a ready, willing and able buyer is procured by Agent, the Owner, or anyone else during the exclusive listing period on any terms acceptable to the Owner;

            b.    If, within 30 days after expiration of the exclusive listing period Owner either directly or indirectly sells, exchanges, conveys or transfers, or agrees to sell, exchange, convey or transfer the Property upon any terms whatsoever, to any person who has been physically shown the Property during the term of this Contract or any renewal hereof, provided names of such persons are delivered or postmarked to the Owner within 15 days from date of expiration.
    “It is the general rule that in order to recover a real estate commission a realtor must show that he procured a purchaser, during the period of the listing agreement, who is ready, willing and able to purchase the property on terms approved by the seller.” Jaudon v. Swink, 51 N.C. App. 433, 434, 276 S.E.2d 511, 512 (1981).
        The broker is the procuring cause if the sale is the direct and proximate result of his efforts or services. The term procuring cause refers to “a cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal's property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing, and able to buy on the principal's terms.”

Realty Agency, Inc. v. Duckworth & Shelton, Inc., 274 N.C. 243, 251, 162 S.E.2d 486, 491 (1968) (emphasis in original) (quoting 12 C.J.S. Brokers § 91, p. 209 (1938)).
    Here, the record shows that Southwind entered into a “Land Contract” with the defendants on 29 August 1995 for the purchase of the property. This “Land Contract” provided that Southwind and Benson Enterprises, Inc. were the “Purchasers.” The evidence further shows that Southwind and Benson never purchased any of the lots from the property and that the defendants terminated the “Land Contract” by letter dated 23 January 1997.
    Then, in February of 1997, Clifton met with the Wilder heirs about a sale of the property. This time, Son-Lan, a different corporation, was to be the purchaser. Calder drafted an “Offer toPurchase and Contract” which was signed by the defendants but was never signed by a representative of Son-Lan.
    In late spring or early summer of 1997, Blankenship formed a new corporation with Clifton and Johnson, Son-Lan Blankenship Development Co., Inc., to purchase the property. Blankenship is the primary investor in Son-Lan Blankenship. Blankenship did not have any involvement with the prior attempts to purchase the property and did not have any communication with Bradshaw or the plaintiffs about the sale. Son-Lan Blankenship purchased the property from the defendants in October 1997.
    Here, Bradshaw did not procure a ready, willing, and able buyer during the term of the listing agreement. Neither Southwind nor Son-Lan ever purchased or received title to the property. Also, the ultimate sale of the property did not occur until October 1997, approximately 1 year and 10 months after the expiration of the listing agreement. Further, Bradshaw was not the procuring cause of the sale of the property to Son-Lan Blankenship because he did not “set[] in motion a series of events which, without break in their continuity, result[ed] in the accomplishment of the prime object of the employment of the broker.” Realty Agency, Inc., 274 N.C. at 251, 162 S.E.2d at 491 (citation omitted).
    Plaintiffs also argue that our courts recognize an equitable remedy when a broker is the procuring cause of the sale of property. Plaintiffs argue that they are entitled to recover the reasonable value of their services.     “Recovery in quantum meruit may be had where the facts show that an implied contract exists. But it is well established that where an express contract concerning the same subject matter is found, no contract will be implied.” Beckham v. Klein, 59 N.C. App. 52, 58, 295 S.E.2d 504, 507-08 (1982) (citations omitted). Here, the parties entered into a listing agreement which specified the terms under which a commission would be paid. “Where parties expressly agree, they are presumed to have contemplated and assumed the risks normally attendant to their bargain.” Id. at 58, 295 S.E.2d at 508. The express agreement of the parties controls here and recovery under a theory of quantum meruit is not available.
    Accordingly, the judgment of the trial court is affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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