Development Sales Co. v. McWilliams

• Decision Date: 11 July 1969
• Docket Number: No. 328,328
• Parties: DEVELOPMENT SALES COMPANY, Inc. v. James McWILLIAMS et al.
• Court: Maryland Court of Appeals

Page 673

254 Md. 673

255 A.2d 1

DEVELOPMENT SALES COMPANY, Inc. v. James McWILLIAMS et al.

No. 328.

Court of Appeals of Maryland.

July 11, 1969.

Barry I. Robinson, Baltimore, for appellant.

Sol C. Berenholtz, Baltimore, for Murray Wolman.

Lloyd G. McAllister and Harold E. Leo, Baltimore, submitted brief for James McWilliams and another.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.

FINAN, Judge.

In June of 1968, Judge McWilliams writing for the Court in Assoc. Realty v. Cadillac Jack, 250 Md. 371, 243 A.2d 543 (1968) noted: 'Once more we are engrossed in the arbitrament of a wrangle between a real estate broker and his customer.'; to such a list, in the interim, we would add Garfinkel v. Schwartzman, 253 Md. 710, 254 A.2d 667 (1969) (filed June 2, 1969); Thorpe v. Carte, 252 Md. 523, 250 A.2d 618 (1969); Knopf v. Merc.-Safe Dep. & Tr., 252 Md. 293, 250 A.2d 96 (1969); Banner v. Elm, 251 Md. 694, 248 A.2d 452 (1968); Cloney v. Pistorio, 251 Md. 511, 248 A.2d 94 (1968); and Sellner v. Moore, 251 Md. 391, 247 A.2d 523 (1968). This is yet another dispute between a property owner and a real estate broker, all of which attests, if nothing more, to the intense activity in the real estate market in Maryland.

On April 13, 1967, Development Sales Company, Inc. (appellant), a Maryland corporation, filed a declaration in the Circuit Court for Baltimore County, against James McWilliams, Marian C. McWilliams, his wife, and Murray L. Wolman (appellees), seeking to recover alleged real estate commissions due the appellant in the sum of two thousand dollars ($2,000.00). The circumstances which brought about this suit are as follows:

In 1964, a licensed real estate salesman of the Development Sales Company, Mr. Merritt, contacted the appellee Wolman by telephone and advised him that he, Merritt, had a tract of ground which Wolman might be interested in buying. Wolman viewed the property and as a prospective purchaser, requested that Merritt try to assemble the three parcels of land, contiguous to each other, which constituted the tract. One of the parcels was owned by the appellees, Mr. and Mrs. McWilliams. In December, 1964, three contracts of sale were entered into for the three parcels, contingent upon the obtaining of rezoning. One of the contracts was with Mr. and Mrs. McWilliams. It was dated December 31, 1964, with a $1.00 deposit, with an additional $800.00 deposit to be paid when and if rezoning was obtained within 18 months, which would have been June 30, 1966. In the event that rezoning was not obtained within 18 months, the contract provided that the buyer would be given more time with the consent of the owners (McWilliamses); otherwise, the contract was to come to an end. There was also a provision in the contract that if the sale was consummated, the sellers (McWilliamses) would pay Development a commission.

On June 30, 1966, the necessary rezoning had not become final. The Zoning Board had granted it, but an appeal had been taken and the case was pending before the Circuit Court for Baltimore County. Mr. Wolman was very desirous of obtaining the McWilliams' land and he contacted Mr. Merritt in that regard. Mr. Merritt was no longer with Development at that time but he testified that he might have spoken to Mrs. McWilliams and that she was reluctant to grant any extension. Mr. Merrfitt referred the matter to Mr. Robinson, the president of Development. It is the appellee Wolman's contention that Robinson did nothing about attempting to get an extension of the contract, while the appellant claims that Wolman requested that Development allow him, Wolman, to handle the obtaining of the contract extension. Mr. Robinson did testify that it was a fair statement to say that his office 'had nothing to do with an extension of this contract.' Thereafter, sometime during this period, Wolman on his own attempted to obtain a new contract from the McWilliamses. Wolman spoke to Mrs. McWilliams on several occasions and she finally referred him to her attorney, Mr. McAllister. Wolman met with McAllister several times and they were finally able to negotiate a new contract which called for a purchase price of $30,000.00 and obligated Wolman, at his own expense, to take the rezoning case to the Court of Appeals if necessary to obtain the desired zoning. This second or new contract was dated August 23, 1966, approximately two months after the first contract had expired.

Settlement on all three pieces of land was held on March 13, 1967, at which time Mr. Robinson presented a bill for commissions for each of the tracts of land involved. No commissions were paid to Development on the McWilliams' tract and it is those commissions which are in dispute here.

On April 13, 1967, appellant filed its declaration in the Circuit Court for Baltimore County along with a motion for summary judgment supported by the required affidavit.

Appellees filed answers to the motion and the matter came on for hearing on January 9, 1968. At that time the lower court denied appellant's motion, but required appellees to file supplemental answers and affidavits within thirty days because their affidavits as filed were not sufficient, as they were not made on personal knowledge and did not present facts which showed a genuine dispute as to a matherial fact. Appellees filed the required supplemental answers and affidavits and the appellant's motion was then denied a second time.

The case was tried on the merits on October 7, 1968, in the Circuit Court for Baltimore County, before Judge H. Kemp MacDaniel, sitting without a jury. At the conclusion of the appellant's case, the appellees moved for directed verdicts which were granted. The lower court was of the opinion that as to the appellees, Mr. and Mrs. McWilliams, there had been an original contract which called for commissions, but that contract had expired and had not been extended. Therefore, there was no evidence that there was any commission due and owing by the McWilliamses to Development. As to the appellee Wolman (the purchaser), the lower court found that there was no legal responsibility on his part to pay a commission to Development and that there was no evidence that Wolman made any agreements to protect Development's commission after the original contract ran out. Thereafter, appellant brought this appeal.

Appellant contends that, (1) the lower court erred in denying appellant's motion for summary judgment, and (2) that it was error to grant appellees' motion for directed verdicts.

Before reaching the merits of the case we will dispose of the threshold question concerning the lower court's allowing the appellees to amend their answer to the appellant's motion for summary judgment. We are of the opinion that the court below was not in error in granting the appellees leave to file supplemental answers and affidavits as Maryland Rule 610 d 2 clearly provides:

'Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated presented by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as justice may require.'

We think such an interpretation of the rule is in keeping with the opinion of this Court in Jacobson v. Julian, 246 Md. 549, 229 A.2d 108 (1967), wherein we stated:

'Wh...