Mark McNally v. Capital Cartage, Inc.

ANNETTE KINGSLAND ZIEGLER, J. (dissenting).

¶ 57 While the court would reverse and conclude that no commission is owed as a matter of law, I would reverse and remand for trial. I conclude that it is error for this court, under these facts, to determine as a matter of law that no commission could be due because, in so doing, the court is acting as fact finder and is usurping the role of the jury.

¶ 58 Competing inferences and conflicting evidence exist in the record as to whether the transition services condition in the offer to purchase would constitute a "substantial variance" from the listing…