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C.B. Snyder Realty v. BMW of North America

Decided: May 5, 1989.

C.B. SNYDER REALTY INC., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
BMW OF NORTH AMERICA INC. AND JOSEPH R. SUTHERLAND, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



On appeal from the Superior Court, Law Division, Bergen County.

Long, Muir, Jr. and Keefe. The opinion of the court was delivered by Keefe, J.s.c. t/a.

Keefe

[233 NJSuper Page 67] After a bench trial plaintiff, C.B. Snyder Realty, Inc., was determined to have been the "efficient producing cause" of two separate lease transactions executed on separate dates with defendant BMW of North America, the lessee of each property.*fn1

The trial judge also found that defendants, BMW and Joseph R. Sutherland, tortiously interfered with plaintiff's opportunity to receive a commission from the lessor of each property. Consequently, damages were awarded to plaintiff in the amount of $159,027.00 on the first transaction (Grand Met) and $45,000.00 on the second transaction (Atrium). As to a third transaction, wherein BMW purchased 41.6 acres of land from Ingersoll-Rand, the trial judge found plaintiff was not the efficient producing cause of the sale but awarded damages to plaintiff, nonetheless, in the amount of $2,500.00, for the "reasonable value of its services regarding the Ingersoll-Rand acreage." Finally, although defendants were found liable for an intentional tort (interference with prospective economic advantage), the trial judge, finding that defendants' conduct was not "sufficiently egregious," declined to award punitive damages.

Defendants appeal challenging the judgment in all respects, except the trial judge's finding that plaintiff was not the efficient producing cause of the Ingersoll-Rand sale. Plaintiff cross-appeals challenging the denial of punitive damages, the measurement of damages concerning the Atrium lease, and the determination that plaintiff was not the efficient producing cause of the Ingersoll-Rand sale. We conclude that defendants did not tortiously interfere with plaintiff's prospective economic advantage. Further, although we agree with the trial judge that plaintiff was not the efficient producing cause of the Ingersoll-Rand transaction, we hold that there is no legal basis to award damages for services rendered by plaintiff in connection with that transaction. Thus, the judgment under review is reversed.

An appellate court is bound by the trial judge's determination of credibility and those findings of fact which are reasonably supported by the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, where the focus of the dispute is not on credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom the appellate function broadens somewhat. Where our review of the record "leaves us with the definite conviction that the judge went so wide of the mark that a mistake must have been made," we may "appraise the record as if we were deciding the matter at inception and make our own findings and conclusions." Pioneer National Title Insurance Co. v. Lucas, 155 N.J. Super. 332, 338 (App.Div.1978). While we have accepted the trial judge's credibility determinations, we have expanded on the findings of fact and evaluated the facts differently in several respects. Those differences will become apparent in the following discussion.

Plaintiff, C.B. Snyder Realty, Inc., specializes in industrial office real estate. John DeCarlo was a salesperson-broker associated with plaintiff. DeCarlo's first contact with BMW was in 1983 when he was acting as the exclusive agent for a tenant in a warehouse who was seeking to sublease it. DeCarlo was contacted by an agent of BMW and, after some negotiation, the transaction was concluded and a commission paid. DeCarlo was also a personal acquaintance of Terrence Cronin, the regional manager for BMW's Eastern Region. De Carlo had perhaps six or seven conversations with Cronin in 1983-84 concerning DeCarlo's desire to be of "assistance or service" to BMW should it have any real estate needs. Cronin advised DeCarlo that BMW would be looking to relocate the Eastern Region office and would need between ten and twenty thousand square feet of space. He advised DeCarlo that defendant Joseph Sutherland, an employee of defendant, was the person who would handle the real estate needs for BMW in that regard. Cronin thereafter suggested that Sutherland telephone DeCarlo concerning the specific project. Sutherland called DeCarlo

and a meeting was established for July 31, 1984. The meeting was attended by DeCarlo, Cronin and Sutherland. Two topics were discussed at that meeting: 1) the requirements for the Eastern Region Headquarters of approximately 15,500 square feet, part of it being office space and the other part a training facility for mechanics; and 2) a site for the new corporate headquarters. Sutherland further specified that the ceiling in the space for the training facility would have to be at least 20 feet high to accommodate a hydraulic lift. DeCarlo understood that plaintiff would have to look to the lessor or seller, as the case may be, for a commission and that BMW desired not to have its identity revealed to any prospective lessor until the transaction was about to be consummated.

After the meeting DeCarlo teamed up with Bernard Prober, another salesperson-broker associated with plaintiff, in preparing a list of available sites. The list, dated August 20, 1984, contained 30 separate sites which DeCarlo felt met defendant's specifications. The Atrium property, but not the Grand Met, appeared on that list. An appointment was made with Sutherland to take him to those various sites on August 21, 1984. Sutherland was not advised in advance what properties he would see and was given the list only when the tour was completed.

The August 21st tour apparently consisted of merely looking at the listed properties from the outside. Sutherland's arrangement with DeCarlo was that if Sutherland was interested in a property from its physical appearance and the basic information made available to him during the tour, DeCarlo and/or Prober would obtain more detailed information in preparation for an inside inspection. When the Atrium was viewed on August 21st, it was apparent to Sutherland that it was under construction. DeCarlo understood that there was some urgency in BMW's quest for new Eastern Region Headquarters since the lease on its current headquarters was to expire in 30 to 60 days. Between August 21 and August 23, 1984, plaintiff's agents learned that the Atrium construction was not scheduled to be

completed and ready for occupancy for another seven to nine months. Based on that information and recognizing his employer's urgent need to find suitable premises, Sutherland rejected the Atrium as a desired site.

There was a conflict in the testimony between DeCarlo and Prober concerning when Sutherland was first shown the Grant Met site. Prober's testimony was that it was shown on August 21st during the first tour and for the purpose of fulfilling BMW's needs for a regional headquarters. DeCarlo testified that it was shown during a tour on August 24th and only because Sutherland had, sometime between August 21st and 24th, expressed a need for some additional office space consisting of 21 to 25 thousand square feet to house the marketing, marine and motorcycle divisions. The trial judge found that the Grand Met was shown to Sutherland for the first time on August 21st thereby accepting Prober's version. Prober's version coincided with Sutherland's recollection that it was shown to him from the parking lot on the first tour on the 21st and in connection with BMW's requirements for the Eastern Regional Headquarters. The trial judge also found that Sutherland quickly informed plaintiff's representatives that he was familiar with the structure and that its dimensions were such that a lift could not be installed. The evidence reflected that Sutherland's daughter had worked for the building manager, Mr. Lavera, and that Lavera had shown Sutherland the building at some earlier time when Sutherland was having lunch with his daughter. Both DeCarlo and Prober testified that the Grand Met was shown to Sutherland only on two occasions and both agreed that the second occasion was on September 25, 1984. Therefore, DeCarlo's testimony that he showed the property to Sutherland on August 24th and the reason he claimed for showing it was impliedly rejected by the trial court.

A second tour of properties occurred on August 24, 1984. Except as to the dispute over whether the Grand Met was seen on that date, the trial judge made no specific findings as to what properties were viewed. However, a second list dated

August 28, 1984 shows an addition of four sites to the first list as well as additional information concerning the Atrium. The Grand Met was not one of the added properties.

Sutherland testified that he did not advise DeCarlo of the need for 21 to 25 thousand square feet of office space to house the marketing, marine and motorcycle divisions until, "[w]e had dropped the need for the space for the Eastern Region." It is clear that BMW's needs changed after it successfully renegotiated an extension of its lease for the regional headquarters building. The trial judge was correct in observing that no specific date was given for when the lease was renegotiated. However, the record is clear that DeCarlo was aware of BMW's changed needs prior to the third tour of property on September 25, 1984, although he may not have told Prober of those changed needs. Again, Sutherland was not told what properties would be viewed beforehand. The following excerpt from DeCarlo's testimony concerning that third tour is revealing.

Q. So you recall that time that you told Mr. Prober that BMW's requirements had changed -- this is on September 25, 1984, and the current need was for just office space?

A. That's correct, because Mr. Prober was trying to show on the Grand Met plans how part of the building could be used where a lift could be utilized because there was an atrium in that building. I told Mr. Prober their needs changed, looking for pure office. The need for the lift was no longer there and had an immediate need for office space.

Q. You also drove him to the parking lot at 100 Paragon Drive in Montvale known as the Grand Met ...


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