Saltzman v. Atlantic Realty Co., Inc.
| Decision Date | 10 September 1981 |
| Docket Number | No. 79-2-A,79-2-A |
| Parties | Richard SALTZMAN et al. v. ATLANTIC REALTY CO., INC. et al. ppeal. |
| Court | Rhode Island Supreme Court |
The plaintiffs herein appeal from a summary judgment entered in the Superior Court in favor of James J. Lombardi, one of the defendants. Mr. Lombardi had been sued individually and in his capacity as legal representative for Atlantic Realty Co., Inc. (Atlantic). The controversy giving rise to this case involves a house in Cranston, Rhode Island, constructed by Atlantic. The house was purchased by a husband and wife, Richard and Andrea Saltzman (the Saltzmans). James J. Lombardi was and still is a real estate agent operating a real estate agency known as Realty House. He was approached by the Saltzmans who wanted to purchase a house. He showed them several houses in the area which were under construction by Atlantic and were listed with his agency for sale.
On February 3, 1975, the Saltzmans and Atlantic entered into a purchase-and-sale agreement for a house at 37 Amhurst Road, Cranston. On March 3, 1975, Atlantic conveyed the property to Saltzmans by warranty deed for a total price of $45,000. At the closing the Saltzmans executed a mortgage deed and note for $35,000 on the property for one year. The mortgage and note ran to Camilla and James Lombardi, who were the parents of James J. Lombardi, the real estate agent.
James Lombardi, the father, the holder of the mortgage, died in September of 1975. On March 3, 1976, the Saltzmans executed a new mortgage and note on the property to Camilla Lombardi and her son James J. Lombardi, the real estate agent. The note was for one year and the sum involved this time was $25,000. On March 24, 1977, the Saltzmans executed another note and deed on the property to Lombardi and his mother, this time for $15,000.
In March 1978 the Saltzmans advised Lombardi and Atlantic of serious water problems in their home. A lawsuit was commenced shortly thereafter against Atlantic and against Lombardi both individually and in his capacity as legal representative of Atlantic.
The complaint is in three counts that generally allege breach of contract and breach of both express and implied warranties.
Lombardi moved for summary judgment in his favor under Rule 56 of the Superior Court Rules of Civil Procedure. He filed therewith an affidavit which set forth that the property in question was owned and constructed by Atlantic; that it was listed with his agency, Realty House, for sale only; and that at no time prior to the date of sale did he have any interest in the property other than as sales agent. Prior to the date of sale, however, he was an officer and a stockholder in Atlantic.
The plaintiffs' affidavit sets forth that the Saltzmans had dealings only with Lombardi, the agent, and with no one else; that the agent's father and mother took a mortgage at the time of the original closing; that after the father died, the agent and his mother took back the mortgage; and that deposits and cash paid at the closing were all made to Lombardi.
The record establishes that the purchase-and-sale agreement is between the Saltzmans and Atlantic. Lombardi is not a party to that agreement. The deed to the property was a warranty deed that ran from Atlantic to the Saltzmans and was executed by one Christopher Lombardi, not otherwise identified, for the corporation. There is no evidence to contradict the fact that Lombardi was the sales agent and that he never owned the property in question or built the house. Neither the Saltzmans' affidavit and pleadings nor any other information in the record of this case contradict these material facts.
Rule 56(c) of the Superior Court Rules of Civil Procedure provides in part:
"(T)he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as (a) matter of law." (Emphasis added.)
Rule 56(e) of Super.R.Civ.P. provides in part:
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