Baker v. Log Systems, Inc.

JOHNSON, Judge. Defendant first contends the court erred in granting summary judgment for plaintiff on the issue of liability. It argues summary judgment was improper because there was a genuine issue of material fact as to the issue of fraud since plaintiffs complaint sounded in fraud. The court, however, granted summary judgment for plaintiff on the ground that the undisputed facts *350 showed defendant breached its contract with plaintiff. If the facts alleged in a complaint are sufficient to permit recovery under a legal theory not stated in the complaint, recovery will be allowed under that theory. See Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979). Here, the complaint alleged facts sufficient to state a claim for breach of contract. The undisputed facts show that the parties entered into an agreement in which defendant agreed to appoint plaintiff as one of its dealers in exchange for the purchase of a log kit by plaintiff and that defendant, not having the authority to issue franchises in the State of California, breached that contract by being unable to award the franchise upon the payment of the deposit by plaintiff. Defendant’s arguments regarding the propriety of summary judgment on the issue of fraud are extraneous and irrelevant. Defendant next contends that the court erred in finding that the decision of the Commission of Corporations of California: (a) affected the validity of the agreement between plaintiff and defendant; (b) determined that the defendant’s action in entering into the agreement was unlawful conduct; and (c) determined that the agreement between the plaintiff and defendant constituted franchising activities as defined under the California Code. This contention is without merit. The California Commission found in its decision that defendant had sold franchises in California, that these franchises included the contractual agreement between the parties, and that plaintiff did not have authority to issue franchises under California law. These findings clearly support the court’s finding and conclusion. Defendant’s remaining contention that there was no basis for the court’s finding that plaintiff paid at least $13,000 to defendant for his appointment as a designated retailer of defendant’s products is also without merit. Among the court’s findings of undisputed facts were findings: (1) that among the express terms and conditions of the parties contract was a requirement that plaintiff purchase a log home to reserve the right to sell defendant’s products in a designated area of California; and (2) that “[p]laintiff was required to purchase a log home from defendant as an express, concomitant condition of his ‘appointment’ as a designated retailer of defendant’s log home kits in the Designated Area.” Defendant did not bring forward exceptions to these findings in its brief; it is therefore deemed to have abandoned them. *351 Rule 28(b)(5), Rules of Appellate Procedure. Moreover, the sales order, which defendant admitted was part of the contract, indicates that the territorial grant was subsumed within the purchase price of the home. For the foregoing reasons, the court’s judgment is Affirmed. Judges WHICHARD and EAGLES concur.