Sigurdson v. Lahr & Lahr, Inc., 9819

• Decision Date: 25 November 1980
• Docket Number: No. 9819,9819
• Citation: 299 N.W.2d 792
• Court: North Dakota Supreme Court
• Parties: Roland P. SIGURDSON, Plaintiff and Appellant, v. LAHR & LAHR, INC., Defendant and Third-Party Plaintiff and Appellee, v. Joseph GRIFFIN, d.b.a. Griffin Realty & Home Builders, Inc., Third-PartyDefendant and Appellee. Civ.

Page 792

299 N.W.2d 792

Roland P. SIGURDSON, Plaintiff and Appellant, v. LAHR & LAHR, INC., Defendant and Third-Party Plaintiff and Appellee, v. Joseph GRIFFIN, d.b.a. Griffin Realty & Home Builders, Inc.,

Third-PartyDefendant and Appellee.

Civ. No. 9819.

Supreme Court of North Dakota.

Nov. 25, 1980.

Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for plaintiff and appellant; argued by Gerald W. Jukkala, Jamestown.

Nilles, Hansen, Selbo, Magill & Davis, Fargo, for defendant and appellee Lahr & Lahr, Inc.; argued by Patricia R. Ellingson, Fargo.

Paulson & Simonson, Valley City, for third-party defendant and appellee Joseph Griffin; no appearance.

SAND, Justice.

Plaintiff, Roland Sigurdson (Sigurdson) appealed from a summary judgment in favor of defendant, Lahr & Lahr, Inc. (Lahr), and against Sigurdson issued by the Burleigh County district court.

This case arises out of a series of transactions involving four parties. Sigurdson and Lahr entered into a listing agreement dated 16 Mar 1976 giving Lahr the right to sell 800 acres of land owned by Sigurdson in McLean County, North Dakota. The listing price was $560,000. John Slinde (Slinde) was interested in the McLean County land and in July 1976 made an offer to Sigurdson which consisted of a trade of Slinde's 640 acres in Mercer County, North Dakota, plus $350,000.00 in cash for Sigurdson's McLean County land. Sigurdson rejected this offer because he wanted cash only for his property, and he did not want to become the owner of any other parcel of land.

Slinde then entered into an agreement dated 11 Aug 1976 with Lahr listing Slinde's 640 acres in Mercer County for $180,000.00. Jopseph Griffin ¹ displayed an interest in the Mercer County land and indicated to a sales representative of Lahr, Robert Olson (Olson), that he was prepared to make an offer to purchase the Mercer County property.

Olson prepared a transaction whereby Sigurdson, Slinde, and Griffin would each achieve the desired results. Two earnest money agreements were entered into to achieve these results. One of the earnest money agreements, signed by Sigurdson on 14 Feb 1977, provided that Slinde would exchange his Mercer County property plus $200,000.00 in cash for Sigurdson's McLean County property. On 6 Apr 1977 the transaction covering the Slinde-Sigurdson exchange was completed and Lahr was paid a $22,200.00 commission.

The second earnest money agreement, also signed by Sigurdson on 14 Feb 1977, provided that Griffin would purchase the Mercer County property from Sigurdson for $180,000.00. This earnest money agreement provided for a $500.00 down payment by Griffin, with $5,000.00 due on 1 May 1977 and $39,500.00 due on or before 1 July 1977. The balance was to be paid in three annual payments of $45,000.00, plus interest at the rate of 8% on the unpaid balance. Griffin made the $500.00 down payment, but subsequently failed to meet his 1 May 1977 payment due under the earnest money agreement.

Griffin made assurances to Lahr and Sigurdson that the $5,000.00 due on that date would be included in the 1 July 1977 payment. These two payments were never made and Griffin indicated his intent to default on the earnest money agreement at an August 1977 meeting attended by Olson, Sigurdson, and Griffin. At this meeting Griffin stated that he could have completed the transaction but he desired not to do so.

As a result of Griffin's default, Sigurdson brought this action against Lahr alleging negligence, fraud, and the breach of an express and implied contract. Lahr answered and denied responsibility for the nonperformance under the contract entered into by Sigurdson and Griffin, ² and alleged that if Sigurdson was damaged, his damages were proximately caused by his own intentional and negligent acts. Lahr moved for a summary judgment in its favor. The motion was granted by the district court and judgment was entered 9 Apr 1980. Sigurdson appeals from that judgment to this court.

Sigurdson asserts on this appeal that summary judgment was improperly granted because there was a genuine issue of material facts, and Lahr was not entitled to a judgment as a matter of law. Sigurdson asserts these facts relate to whether or not Lahr made false representations concerning the sale of the Mercer County land to Griffin which improperly induced Sigurdson to enter into the earnest money agreement with Griffin. Sigurdson also asserts that there is a dispute as to whether or not Lahr received a commission from Sigurdson for the transaction Griffin defaulted on.

Rule 56, North Dakota Rules of Civil Procedure, pertaining to summary judgments provides in pertinent part as follows:

"(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

"(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment, as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party.

"(e) ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may or may not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

The summary judgment procedure of Rule 56, NDRCivP, is a procedural device available for promptly and expeditiously disposing of a controversy without a trial when there is no dispute as to material facts or when only a question of law is involved. Zuraff v. Empire Fire & Marine Insurance Co., 252 N.W.2d 302 (N.D.1977). Judge Cordozo succinctly dealt with the purpose of summary judgment when he stated:

"The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of trial." Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110, 111 (1926).

The party moving for a summary judgment must clearly demonstrate that there is no genuine issue of material fact. Yegen v. City of Bismarck, 291 N.W.2d 422 (N.D.1980). Thus, we have said that:

"A motion for summary judgment will be granted only if, after taking a view of the evidence in a light most favorable to the party against whom summary judgment is demanded, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Herman v. Magnuson, 277 N.W.2d 445, 454 (N.D.1979).

Even absent a genuine issue as to a material fact, summary judgment is inappropriate if inferences reasonably deducible from undisputed facts are conflicting. Herman v. Magnuson, supra. Where different factual inferences may be drawn, they must be drawn in favor of the party opposing summary judgment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

In Kirton v. Williams Electric Co-op, Inc., 265 N.W.2d 702 (N.D.1978), we quoted with...