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Antrim, Piper, Wenger, Inc. v. Lowe

June 8, 2007

ANTRIM, PIPER, WENGER, INC., APPELLEE,
v.
DAVID W. LOWE AND DEBORAH LOWE, APPELLANTS.



Appeal from Chatauqua District Court; F. WILLIAM CULLINS, judge.

SYLLABUS BY THE COURT

1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. When there is no factual dispute, appellate review of an order regarding summary judgment is de novo.

3. When an owner of property enters into a nonexclusive right to sell agreement with a real estate agent for the sale of the owner's property, the owner retains the right to sell the property. This rule, however, does not apply when the owner uses a buyer procured by the real estate agent hired by the owner.

4. If a real estate agent procures a buyer who is ready, willing, and able to purchase the property for the price set in the brokerage contract and within the time provided in the brokerage contract, the agent is entitled to a commission although the transaction is actually closed by the owner directly with the buyer.

5. To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.

6. Generally, issues not raised before the trial court cannot be raised upon appeal. There are exceptions to this general rule: (1) where the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) where consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) where the judgment of the trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision.

7. The purpose of a motion to alter or amend under K.S.A. 60-259(f) is to allow a trial court an opportunity to correct prior errors.

8. Where a summary judgment is rendered and where a party moves to alter or to amend the judgment, a trial court in determining the validity of the summary judgment should limit its consideration to the matters which were before the court when it entered the judgment in the first instance.

The opinion of the court was delivered by: Green, J.

Affirmed.

Before MARQUARDT, P.J., GREEN and CAPLINGER, JJ.

David and Deborah Lowe appeal from a summary judgment granted in favor of Antrim, Piper, Wenger, Inc., a real estate broker. Antrim sued the Lowes for commissions allegedly earned in the sale of the Lowes' 1,210-acre ranch. On appeal, the Lowes contend that the trial court inappropriately granted summary judgment because genuine issues of material fact remained at issue. We disagree. Accordingly, we affirm.

On March 31, 2004, David W. Lowe signed a nonexclusive right to sell agreement with Einer Johnson, a real estate agent for Antrim, Piper, Wenger, Inc. (Antrim), to sell the Lowes' ranch near Sedan, Kansas. This contract allowed Antrim to list and sell the property for $1,500,000 during a ...


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