MAISOON MAHER ASAD (SULEIMAN),
Plaintiff,
v
.
Wilson County
No. 98 CVD 2090
MAHER M. ASAD,
Defendant.
LEVINSON, Judge.
This dispute arises out of an order requiring Maher M. Asad
(defendant) to pay $25,000 to Coldwell Banker Gregory Properties,Inc. (intervenor) for a commission associated with the sale of real
property.
This litigation originated as a domestic relations matter. On
November 9, 1998, Maisoon Maher Asad (plaintiff) filed a complaint
seeking, inter alia, an equitable distribution of marital property.
On February 3, 1999, defendant filed a pleading that answered the
complaint and set forth numerous counterclaims. This pleading
included a prayer for “trial by jury on all issues so triable
before a jury.”
Thereafter, a series of orders were necessary to address the
ownership and disposition of the Thriftway Food Store and the real
property associated with the same (hereafter “the property”). They
are summarized below:
(1) A 6 January 2000 consent order included provisions that
the property be placed on the market for sale “with a mutually
agreed upon broker”, and that “the division of the proceeds
shall be reserved for hearing or agreement of the parties at
a later date.”
(2) In a 20 September 2000 order, the trial court found that
defendant fraudulently conveyed the marital residence and the
property to his mother without the knowledge or consent of
plaintiff. The trial court therefore ordered that the
transfer of the property be “avoided”, and vested title in the
same to plaintiff. Also by virtue of this 20 September 2000
order, plaintiff was authorized to sell the property.
(3) A 4 October 2001 consent order provided that “the parties
agree to sell . . . the [property,]” and, further, that
“[d]efendant shall be in charge and control of marketing theproperty. . . .”
(4) A 4 September 2003 consent order included a provision that
the “[d]efendant has now tendered an offer for the purchase of
the business in the total amount of $225,000 which has been
accepted by the [p]laintiff with regard to her ownership
interest in the business.” In addition, this consent order
provided that “the [d]efendant shall hold the [p]laintiff
harmless and shall fully indemnify the [p]laintiff from any
and all claims or potential claims by Mark Silverthorne,
Realtor and/or Gregory Properties, and/or Diptiben K. Patel
arising out of a Listing Agreement entered into by and between
the [p]laintiff and Mark Silverthorne, Realtor and/or Gregory
Properties.” Moreover, the parties agreed that “all remaining
issues in this cause of action, including pending issues and
any other issues which shall be properly pled and noticed for
hearing, shall be scheduled for trial before the Honorable
William C. Farris, Judge Presiding, at the October 16 and 17,
2003 session of Civil District Non-Jury Court for Wilson
County[,]” and “to submit to the Court the issue [of] whether
or not realty commissions should be paid to Mark Silverthorne,
realtor, and/or Gregory Properties, Inc., arising out of [the
listing agreement].”
(5) A 26 November 2003 order on equitable distribution was
entered disposing of the marital estate. This order provided,
inter alia, that “[t]he issue of the commissions due to Mark
Silverthorne and/or Gregory Properties, which amounts are the
sole responsibility of the Defendant, shall be reserved for
hearing at a later date.”
On 2 December 2004, defendant filed a motion for a jury trial
as to any issues concerning real estate commissions. This motion
was denied by the trial court. On 9 December 2004, the court
entered a consent order allowing Mark Silverthorne and Coldwell
Bankers Gregory Properties, Inc. to intervene. On 5 January 2005,
defendant filed a motion for summary judgment in his favor on theissue of the commissions. Plaintiff and intervenors filed a joint
motion for summary judgment on 14 January 2005, asserting that
there were no genuine issues of material fact concerning either the
existence and validity of the real estate commission, or the amount
of the same. The trial court, in an order dated 26 January 2005,
denied both motions for summary judgment.
After a hearing, the trial court, in an order dated 26 January
2005, made the following findings of fact:
2. The Plaintiff and Defendant entered into a
Consent Order dated September 4, 2003 that
read in part, “The Defendant shall hold the
Plaintiff harmless and shall fully indemnify
the Plaintiff from any and all claims or
potential claims by Mark Silverthorne, Realtor
and/or Gregory Properties, and/or Diptiben K.
Pate1 arising out of a Listing Agreement
entered into by and between the Plaintiff and
Mark Silverthorne, Realtor and/or Gregory
Properties.”
. . . .
6. The parties have requested the Court to hear
this matter at this time to determine what
monies, if any, Defendant is obligated to pay
Plaintiff or to indemnify her under the
Consent Order of September 4, 2003 which issue
was also reaffirmed in the Consent Order dated
November 12, 2003.
. . . .
8. On February 18, 2003, Plaintiff contracted
with Coldwell Banker Gregory Properties, Inc.
through agent, Mark R. Silverthorne, to list
for the purpose of sale the property known as
417 Hines Street, Wilson, North Carolina. Aregular Listing Agreement of Property for Sale
was executed on that date and was signed by
Maisoon Suleiman and by Mark Silverthorne for
Coldwell Banker Gregory Properties, Inc. This
was an exclusive listing and the document was
entered into evidence by the Plaintiff. The
Exclusive Listing which was executed by
Plaintiff with Coldwell Banker Gregory
Properties, Inc. read as follows, “EXCLUSIVE
RIGHT TO SELL. For a period extending until
midnight on February 18, 2004, Listing Agency
shall have the exclusive right to sell the
Property as agent of Seller at the price and
on the terms set forth below, or upon such
other terms as may be agreed upon in writing
by Seller with any Buyer”.
9. On July 23, 2003 an Agreement for Purchase and
Sale of Real Estate and an Addendum were
signed by Plaintiff, Maisoon Suleiman, as
Seller, and Diptiben K. Patel, as Buyer, with
a sales price for the property in question of
$250,000.00. The Buyer was secured by Mark R.
Silverthorne and Coldwell Banker Gregory
Properties, Inc.
10. The exclusive listing contains a provision for
a 10% commission to be paid to Agent.
11. The Defendant advised Plaintiff that he wanted
to purchase the property himself and would
immediately pay $225,000.00 and would be
responsible for any indebtedness incurred by
Plaintiff Suleiman as a result of the listing
with Coldwell Banker Gregory Properties, Inc.
and Mark R. Silverthorne. An Agreement was
signed and a Consent Order was entered to this
effect. The Defendant shall indemnify
Plaintiff for the commissions owed to Coldwell
Banker Gregory Properties, Inc., which
commission is $25,000.00.
12. . . . The Defendant is obligated to indemnify
Plaintiff for the sum of $25,000.00 under his
agreement with Plaintiff as well as theConsent Order dated September 4, 2003.
13. An Order dated August 24, 2000, read as
follows: “The Defendant Maher M. Asad is
divested of title to the real estate at 417
Hines Street, Wilson, North Carolina which is
more fully described in Exhibit B which is
attached hereto, pursuant to N.C.G.S. Section
A-1, Rule 70 and title to that property is
hereby vested with the Plaintiff, Maisoor M.
Asad.” There has been no divesture of the
property from the Plaintiff since that date.
14. There was a subsequent Order dated August 23,
2001 that said, “The parties shall sell the
real estate on Hines Street known as The
Thriftway Food Store. The Defendant shall be
in charge of control of marketing this
Property (time is of the essence)”. The
undersigned Judge was the Presiding Judge
signing the Order on August 23, 2001 and there
was no modification of the August 24, 2000
Order divesting Defendant of title. The intent
of the Court was only to allow the Defendant
to “lead” in the marketing of the property
but, in no way was it to limit the authority
of Plaintiff to attempt to sell the property
nor to divest her of any rights or privileges
allowed in the August 24, 2000 Order. The
listing by the Plaintiff with Coldwell Bankers
Gregory Properties, Inc. resulted in the
purchase of this property.
15. There has been a history in this case of the
Defendant being out of the country and being
unavailable to attend court proceedings and,
in fact, deeds to the marital property were
executed by the Defendant to his mother with
the intent to prevent the Plaintiff from
selling or asserting her marital interest in
the property. These conveyances rendered the
property unmarketable by Plaintiff and
prevented the Plaintiff from implementing
numerous subsequent Orders of this Court
allowing her to sell the property. Theproperty was eventually transferred back into
Defendant's name. At no time was there any
intent by this Court to exclude the Plaintiff
from listing and selling the property in
question.
16. The Plaintiff had title in her name at the
time of the listing and a valid contract was
signed by Plaintiff with Coldwell Bankers.
17. There was a bona fide offer from Pate1 dated
July 23, 2003 for a total sum of $270,000.00,
of which $250,000.00 was the amount allotted
for the sale of 417 Hines Street, Wilson,
North Carolina, the property owned by
Plaintiff and Defendant. The additional
$20,000.00 was earmarked for Wilson Petroleum
Company which was the owner of the tanks on
the premises. This was a bona fide offer under
the contract with agent (Coldwell Banker
Gregory Properties, Inc.) for seller
(Plaintiff).
18. When the Defendant learned of this pending
sale, he agreed to purchase the property for
$225,000.00 and recognized the original offer
of $250,000.00 by Patel, as well as the 10%
commission which amounted to $25,000.00 owed
to Coldwell Banker Gregory Properties, Inc.
19. Upon the sale of the property to the
Defendant, who had agreed to be responsible
for any commissions owed, the Plaintiff became
indebted to Coldwell Banker Gregory
Properties, Inc. and Mark R. Silverthorne in
the sum of $25,000.00. Defendant is
responsible for indemnifying Plaintiff for the
commission owed Coldwell Banker Gregory
Properties, Inc.
20. The Plaintiff, through her agents, had found a
bona fide buyer prior to Defendant's offer and
there was in existence at the time of the sale
to Defendant, an exclusive contract for the
sale of the property with Coldwell BankerGregory Properties, Inc. The Defendant has
taken the benefit of the marketing efforts of
Plaintiff and her agents, Coldwell Banker
Gregory Properties, Inc. and has agreed to the
Consent Order wherein he would be responsible
and would indemnify Plaintiff for any money
owed to Coldwell Banker Gregory Properties,
Inc.
21. There was a valid listing and the Plaintiff is
indebted to Coldwell Banker Gregory
Properties, Inc. in the sum of $25,000.00 and
hence the Defendant is obligated to assume and
pay said debt and the indemnity language in
the September 4, 2003 Order verifies this
debt.
Based upon these findings, the trial court concluded:
. . . .
3. There was a valid sales contract between
Plaintiff and Coldwell Banker Gregory
Properties, Inc., which contract resulted in
the sale of the property. The Defendant has
the obligation under law and [by] agreement to
indemnify the Plaintiff in the sum of
$25,000.00 and the indemnity language is found
in the September 4, 2003 Order.
4. There is a valid debt owed by Plaintiff to
Coldwell Banker Gregory Properties, Inc. and,
in turn, the Defendant is obligated to
indemnify Plaintiff of said debt[,] a result
of the indemnity language in the September 4,
2003 Order.
The trial court ordered defendant to pay $25,000 in real
estate commissions to the intervenor, and to indemnify plaintiff
for the same because she was the party who executed the listing
agreement with the intervenor. In addition, the trial courtdecreed that the $25,000 obligation serve as a lien on the
property.
Defendant appeals.
Defendant first argues that the trial court erred by denying
his December 2, 2004 motion for a jury trial on the issues related
to whether he was obligated to pay a commission to Coldwell Banker
Gregory Properties, Inc
. Relying on his February 3, 1999 answer,
in which he demanded a jury trial, and the December 2, 2004 request
for a jury trial that he filed in “an overabundance of caution”,
defendant asserts that “any action undertaken by the Intervenor to
recover realty commissions based on allegations of breach of
contract by the Plaintiff, whether filed as a separate action in
the Superior Court Trial Division of Wilson County or asserted by
agreement as an Intervener [sic] in the pending District Court
cause of action, constituted an action at law which mandated a
trial by jury upon request by the Defendant.” On these facts, we
disagree.
Defendant's brief decries the failure of the trial court to
grant him a jury trial, and explains that actions at law are
ordinarily reserved for juries.
Defendant's principal argument is
that his agreement to allow the trial court judge to resolve the
issue of commissions preceded the intervention by Coldwell Bankers,
and therefore any waiver to his right to a jury could not apply torelief sought by Coldwell Bankers. However, defendant does not
construct a legal argument, supported by relevant citations of
authority, explaining why his previous agreement to submit this
precise issue to the trial court judge was ineffective as to
Coldwell Properties.
Defendant also suggests that, because the
obligation to pay a real estate commission sounds in contract, the
issue must generally be reserved for a jury regardless of the
particular forum or lawsuit in which the issue arises. However,
defendant does not articulate, with relevant authority, the effect
of the undeniable fact that he previously agreed to submit this
precise issue to the bench knowing that any such obligation would
inure to the benefit of Coldwell Bankers.
We observe that defendant agreed to allow Coldwell Bankers
Gregory Properties, Inc. to intervene without requiring the same to
file a separate pleading specifically seeking the commission, and
specifically agreed to allow a trial court judge to determine all
remaining issues related to the ongoing litigation, including the
“issue regarding whether or not realty commissions should be paid
to Mark Silverthorne, realtor, and/or Gregory Properties, Inc.,
arising out of [the listing agreement].” Defendant's express
agreement, evidenced at a minimum by the 4 September 2003 consent
order, to submit the issue to the presiding judge was not
contingent on whether the real estate entity was made a party tothe ongoing litigation or not. Rather than litigate the issue of
real estate commissions in a separate action filed by Coldwell
Bankers, the parties agreed to resolve it within the confines of
the existing litigation and allow the trial court to resolve the
same. This was made a part of a negotiated settlement entered into
by the parties with the benefit and assistance of legal counsel.
Defendant has not demonstrated that the trial court erred by
denying his motion for a trial by jury on the issue of the real
estate commissions. The relevant assignments of error are
overruled.
Defendant next contends the trial court erred by denying his
motion for summary judgment. The trial court denied both parties'
motions for summary judgment and a hearing was held on all issues.
The rule is well established in North Carolina that “the denial of
a motion for summary judgment is not reviewable during appeal from
a final judgment rendered in a trial on the merits.” Harris v.
Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985) (citations
omitted). Therefore, this issue is not properly before us.
In defendant's third and final argument, he contends the trial
court's findings of fact numbers 11, 12, 14, 16, and 18-21 of the
order dated 26 January 2005 are unsupported by the evidence and do
not support the court's conclusions of law numbers 3 and 4. We
disagree. Rule 9(e) of the North Carolina Rules of Appellate Procedure
requires that the record on appeal contain “so much of the
evidence, set out in the form provided in Rule 9(c)(1), as is
necessary for an understanding of all errors assigned[.]” N.C.R.
App. P. 9(e). “Where such evidence is not included in the record,
it is presumed that the findings are supported by competent
evidence, and the findings are conclusive on appeal.” In re
Botsford, 75 N.C. App. 72, 75, 330 S.E.2d 23, 25 (1985) (citations
omitted).
Defendant has not included either a transcript or narrative
summary of the proceedings in the record on appeal. There is
nothing before us indicating what evidence was presented to the
trial court.
Because there is no record of the evidence presented
at trial, it is presumed these findings are supported by competent
evidence, and we summarily conclude that these findings of fact
support the conclusion of law that defendant has an obligation to
pay the $25,000 real estate commission to the intervenor.
The relevant assignments of error are overruled.
Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***