Porter v. Deeter, 73--213
| Decision Date | 11 February 1974 |
| Docket Number | No. 73--213,73--213 |
| Citation | 255 Ark. 1057,505 S.W.2d 18 |
| Parties | Howard PORTER, Appellant, v. James L. DEETER and NaDean Deeter d/b/a Deeter Real Estate, Appellees. |
| Court | Arkansas Supreme Court |
Robert L. Blount, Searcy, for appellant.
Boyett & Morgan, P.A., Searcy, for appellees.
This is an appeal by Howard Porter from a summary judgment in the amount of $11,122.00 entered in favor of James L. 'Dobie' Deeter and NaDean Deeter d/b/a Deeter Real Estate for a commission allegedly due upon the sale of a bulk oil plant.
At the bottom of an itemized list of property dated 9/27/71, is an agreement admittedly signed by Porter which provides:
The complaint alleged that Porter, on March 1, 197i, closed a sale to Jerry Ethridge that was negotiated during the 90 day listing period, for the sole purpose of avoiding the payment of a real estate commission to appellees. The answer denied that the sale was made during the 90 day period and affirmatively alleged that appellees in obtaining the exclusive listing represented that the contract was for the purpose of preventing other real estate agencies from contacting Porter. The appellees do not contend that they procured the purchaser or that the sale resulted from their efforts.
Through interrogatories it was determined that Porter sold the property described in the listing contract for $222,440.00 to Ethridge and that the transaction was closed on March 1, 1972. Based upon the foregoing information appellees moved for summary judgment contending there was no genuine issue as to any material fact. Porter responded: (1) denying that the property was sold during the 90 day listing period; (2) contending that he was entitled to have a jury pass on the issue of whether the contract was an exclusive listing contract or an exclusive sales contract; and (3) pointing out that appellees had not produced a ready, willing and able buyer during the exclusive listing period. The affidavits attached to the response tend to support Porter's contention that no sale was made during the 90 day period. Thereafter appellees' counsel filed a reply to Porter's response to the motion for summary judgment including therein an excerpt from an alleged deposition taken of Porter. The trial court, based upon the motion for summary judgment, the interrogatories, the affidavits of Porter and Ethridge and the response to the motion for summary judgment which contained excerpts from the alleged deposition of Howard Porter, awarded appellees a summary judgment in the amount of $11,122.00--that amount being 5% of the full sale price of $222,440.00. For the reasons hereinafter stated, we reverse.
1. The rule is that before a movant is entitled to summary judgment, he must show that there are no issues of fact. Ark.Stat.Ann. § 29--211(...
To continue reading
Request your trial
- Snow v. Martensen, 73--223
-
Tisdale v. Hicks, CA
...has the burden of supporting its motion for summary judgment by showing there are no remaining issues of fact. Porter v. Deeter Real Estate, 255 Ark. 1057, 505 S.W.2d 18 (1964). In Russell v. City of Rogers, 236 Ark. 713, 368 S.W.2d 89 (1963), our supreme court, after general remarks on the......
-
Wilkinson v. Amos Enderlin Contracting Co., Inc., CA
...ambiguous, there then arises an issue of fact to be litigated which precludes summary judgment. In Porter v. Deeter Real Estate, 255 Ark. 1057, 1059, 505 S.W.2d 18 (1964), the court reversed the granting of a motion for summary judgment because a fact issue was involved since "the contract ......
-
Camp v. Elmore, CA
...of the parties as to the meaning of a contract is in issue, summary judgment is particularly inappropriate. Porter v. Deeter Real Estate, 255 Ark. 1057, 505 S.W.2d 18 (1964); Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (CA7, Reversed and remanded. ...