Davis and Davis Realty Co., Inc. v. Rodgers

• Decision Date: 21 November 1989
• Docket Number: No. 8926SC310,8926SC310
• Citation: 385 S.E.2d 539,96 N.C.App. 306
• Parties: DAVIS AND DAVIS REALTY CO., INC., Plaintiff, v. Jerome T. RODGERS, and J.T. Rodgers Corp., a corporation, jointly and severally, Defendant.
• Court: North Carolina Court of Appeals

Page 539

385 S.E.2d 539

96 N.C.App. 306

DAVIS AND DAVIS REALTY CO., INC., Plaintiff, v. Jerome T. RODGERS, and J.T. Rodgers Corp., a corporation,

jointly and severally, Defendant.

No. 8926SC310.

Court of Appeals of North Carolina.

Nov. 21, 1989.

Bradley, Guthery, Turner and Curry by Tate K. Sterrett, Charlotte, for plaintiff-appellee.

Murchison, Guthrie, Davis & Henderson by Robert E. Henderson and K. Neal Davis, Charlotte, for defendants-appellants.

WELLS, Judge.

Defendants contend that the trial court erred by refusing to grant their motions for directed verdict or judgment notwithstanding the verdict. Defendants contend that plaintiff's testimony concerning when his commission was due is so inconsistent as to establish as a matter of law that no agreement was ever reached by the parties. For the following reasons we disagree.

The jury found that: (1) a contract existed between plaintiff and either defendant whereby either defendant was to pay to the plaintiff a real estate commission on the Hall property and (2) the contract was breached by defendants' refusal to pay the commission. The parties stipulated at trial that the verdict would be binding on both defendants, jointly and severally.

When determining whether to grant a motion for directed verdict or judgment notwithstanding the verdict the same standard applies. Williams v. Jones, 322 N.C. 42, 366 S.E.2d 433 (1988). Both motions test the legal sufficiency of the evidence to take the case to the jury. Taylor v. Walker, 84 N.C.App. 507, 353 S.E.2d 239, reversed on other grounds, 320 N.C. 729, 360 S.E.2d 796 (1987). In ruling on either motion the court must consider the evidence in the light most favorable to the nonmovant and may grant the motion only if the evidence is insufficient, as a matter of law, to support a verdict for the nonmovant. Williams, supra at 48, 366 S.E.2d at 437. Conflicts and inconsistencies in the evidence are to be resolved in favor of the nonmovant. Id. at 48, 366 S.E.2d at 437.

In their answer defendants admit that Jerome T. Rodgers, in his capacity as president of J.T. Rodgers Corp., agreed to pay a real estate commission to W. Cleve Davis in connection with the acquisition of the Hall property. The factual dispute in this case concerns whether defendants were required to pay the commission when the Hall heirs signed the sales contract or whether defendants were obligated to pay plaintiff the commission only if the sale actually closed. In resolving this factual dispute in favor of plaintiff, the jury had more than a scintilla of evidence that plaintiff's entitlement to its commission was established when the Hall heirs signed the contract and was not contingent upon the sale being consummated. See e.g. Broyhill v. Coppage, 79 N.C.App. 221, 339 S.E.2d 32 (1986) (If there is more than a scintilla of evidence supporting each element of nonmovant's case, the motion for directed verdict [or judgment notwithstanding the verdict] should be denied.) (Citations omitted).

According to Davis' testimony, in order for plaintiff company to be entitled to the $50,000 commission he had to "secure the acceptance of [Mr. Rodger's offer by] the Hall family members, and have them execute the contract." Davis further testified that the "proposal was that he [Rodgers] would have 30 days after he signed the contract to examine the property to be sure it was satisfactory ... after the initial 30-day period of time he would ... pay us [Davis and Davis Realty] our commission for the work that we had performed." Davis testified that during a telephone conversation with Rodgers 26 December 1986, Rodgers informed Davis that he was not going to "close the contract" on the Hall property because there was "no money in it for him." Since the time for terminating the sales contract was past, Davis advised Rodgers that the binder deposit he had paid must be released to the Hall heirs. Davis next testified that he wrote defendant Rodgers a letter requesting payment of his commission. He read the letter to the jury which in pertinent part read:

[W]e are writing to you in reference to services rendered to you by our firm in connection with the contract covering the Hall property.... We would like to receive payment for services we have rendered in connection therewith.

In September, 1986, you advised that you were prepared to purchase the Hall property provided we secure a firm commitment from the Hall family on the terms and conditions which you specifically specified, and are a part of the contract which was executed by the Hall interest in connection therewith.

You further advised that you would pay this office the sum of $50,000 following the initial 30 day period which would give you time to determine the suitability of the site for your purpose. The subject contract was not cancelled within the initial 30 day period, and thus we feel that our firm has earned the fee which you agreed to pay in connection therewith.

By demand we are requesting that you...