SMITH, J., delivered the opinion of the Court.
Appellee, M.W. Griffith (Griffith), a real estate broker, believes appellant, P.G. Melbourne (Melbourne), another broker, is indebted to him for a portion of the commissions on the sale of some Prince George's County real estate. He convinced a jury of that fact and recovered judgment. We shall here reverse that judgment.
Melbourne filed a motion for summary judgment which was decided adversely to him by a judge other than the judge who sat at the trial of the case. He points out that under Maryland Rule 887 on an appeal from a final judgment "every interlocutory order which has previously been entered in the action shall be open to review by this Court unless an appeal has theretofore been taken from such interlocutory order and been decided on the merits by this Court." He urges, correctly in our view, that his motion for summary judgment should have been granted.
Griffith has proceeded on the theory that the criterion for determining whether or not there is a commission due between co-operating brokers is whether the co-operating broker has been of some assistance in the matter to the broker of record. Such is not the Maryland law. In Bowie v. Martin, 199 Md. 58, 61, 85 A.2d 786 (1952), Judge (later Chief Judge) Markell stated the rule to be that such cases are "governed by the same legal principles as if [the broker] were owner instead of exclusive agent or broker." See also Burrell v. Frisby,
Griffith sued Melbourne alleging that Griffith was a duly licensed real estate broker in Maryland; that Melbourne was likewise so licensed; that Felix M. Irwin (Irwin) was a duly licensed real estate agent; that Melbourne as a broker during the years 1968 and 1969 was employed by the owner of certain lands in Prince George's County known as Hillsborough Subdivision of the Tenth Election District of Prince George's County; that Melbourne as such broker offered this land for sale on a cooperative basis with other brokers in the area, including Griffith; that Irwin was Griffith's agent; "that as a result of such offering by [Melbourne] the said Felix M. Irwin procured a purchaser, Robert Bornstein, a member of R-B Associates, Inc. and Colony Construction Corporation; that as a result of the efforts of the said Felix M. Irwin, Agent of [Griffith], a contract for the sale of certain portions of the said Hillsborough Subdivision was entered into"; that settlement was held; that the sale price was in the amount of $101,500; the commission provided in said contract was in the amount of $10,150; that Melbourne received his commission of $10,150; that the agreement between Melbourne and Griffith through his agent, Irwin, provided that each broker would receive 50% of the commission; that Melbourne refused and continues to refuse to pay over to Griffith or his agent any portion of the said commission "in violation of his agreement"; "that through the efforts and services of [Griffith] through his Agent, Felix M. Irwin, [Griffith] was the procuring cause of the sale to the said purchaser
It is conceded that the land in question was sold to R-B Associates, Inc., under a contract dated January 15, 1969, which contract did in fact call for a commission to Melbourne of 10% of the sale price of $101,500. Robert E. Bornstein executed the contract on behalf of the purchaser as its president. Melbourne took and filed Irwin's deposition. Irwin related that Melbourne advised him that "his group would very much like to dispose of" the land in question, that if Irwin "could find somebody that would be interested he'd very much appreciate it", and Melbourne "would co-op the sale of the lots with [Irwin]." Irwin called a Mr. Bud Ourand with Artery Enterprises. Ourand indicated that he did not think Artery would be interested but he knew someone else who was looking for lots "and this just might fill the bill." Our-and mentioned a Bob Gainer.
Under the apparent theory that Maryland Rule 402 relative to depositions prior to the institution of an action for the purpose of perpetuating testimony is also intended for discovery purposes, Griffith, without objection from Melbourne, took Melbourne's deposition prior to institution of the action. Melbourne recited that he showed lots to Gainer at Gainer's request. Melbourne was advised by Gainer that he knew Ourand who told him of the lots, after which he decided to investigate. Gainer drove out, saw them, saw Melbourne's sign, and then called Melbourne. Gainer later informed Melbourne that he was not able to put together a deal. However, he introduced Melbourne to a man by the name of Bloom. A number of conversations took place with Gainer's indicating that he was "trying to talk Mr. Bloom into buying the property. But that he hadn't been successful." Subsequently Gainer introduced Melbourne to Mr. Bornstein, President of R-B Associates, Inc., the ultimate purchaser.
The mandate of Rule 610 d 1 is that "the pleadings, depositions, and admissions on file, together with the affidavits, if any" shall be considered on the motion for summary judgment and that "[t]he judgment sought shall be rendered forthwith" if they "show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." Griffith filed no affidavits. The only other depositions in the file at the time of the motion were those of two directors of the owner of the real estate sold, neither of which had a bearing on whether Irwin was the procuring cause of the sale.
Where, as here, the pleadings, the depositions, and the affidavits submitted by the moving party set forth sufficient competent evidence to entitle him to summary judgment, it is incumbent upon the opposing party to present such evidence as will give rise to a triable issue of fact in order to prevent the entry of summary judgment. To do this he must show by facts admissible in evidence that there is a genuine dispute as to a material fact. Fishman
The material, central issue in this case is whether Irwin was the procuring cause of the sale. The affidavit and Irwin's deposition show he was not. Since Griffith has not by affidavit or deposition shown anything to the contrary, there is no genuine dispute as to a material fact. Summary judgment should have been entered in favor of Melbourne.
Judgment reversed; judgment entered in favor of P.G. Melbourne against M.W. Griffith for costs in this Court and in the Circuit Court for Prince George's County.