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APEX Realty Inc. v. Schick Realty Inc.

Decided: July 19, 1990.

APEX REALTY, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
SCHICK REALTY, INC., A NEW JERSEY CORPORATION, DEFENDANT-THIRD PARTY PLAINTIFF-RESPONDENT, V. THE GREATER WILDWOOD-CAPE MAY COUNTY BOARD OF REALTORS, MARINA DOLHANCEY, WILLIAM H. DONAHUE AND HARRY HAND, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, THIRD PARTY DEFENDANTS-APPELLANTS



On appeal from Superior Court, Law Division, Cape May County.

Long, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

Third-party defendants The Greater Wildwood-Cape May County Board of Realtors and its arbitrators, Marina Dolhancey, William H. Donahue and Harry Hand (Board) appeal from an interlocutory order of the Superior Court, Law Division, requiring them to formulate written findings of fact and conclusions of law regarding their resolution of an issue of contract construction in favor of plaintiff Apex Realty, Inc. (Apex) and against defendant-third-party plaintiff, Schick Realty, Inc. (Schick). We reverse the decision of the Law Division and reinstate the Board's order.

On September 1, 1987, Schick entered into an exclusive listing agreement with Chester and Mildred Wojton (sellers) for the sale of their 20-acre parcel of developable land in Fishing Creek, New Jersey. The agreement listed the parcel's price as $450,000 and provided for the payment of a $10,000 commission to Schick upon sale. At the same time, Schick and the sellers signed a waiver of broker cooperation agreement (waiver agreement) which provided:

This property is to be marketed only through the efforts of the Listing Broker. This listing is not to be published in any multiple listing service. I will only consider offers on this property which are obtained by, and I will only allow showings of this property to be conducted by the Listing Broker or his or her duly authorized representatives. THE LISTING BROKER IS HEREBY DIRECTED NOT TO COOPERATE WITH ANY OTHER BROKER.

By signing below, the parties hereto confirm that no pressure or undue influence has been exerted upon the owners as to how this property is to be marketed by the Listing Broker.

The owner(s) further confirm receipt of a fully executed copy of the listing agreement on this property, and of this Waiver of Broker Cooperation form.

On December 21, 1987, the property was sold to Bowman Builders, Inc. The principal of this corporation, John E. Bowman, is also the principal of Apex. The agreement of sale contained the following provision:

Brokers Commission. Seller represents that this contract did not come about through the assistance of a real estate broker or salesman and if any person makes any claim for commission by reason of this contract, then seller will defend all such claims and pay any damages awarded as a result thereof. Should buyer be called upon to defend or make payment of any such claims, then seller agrees to indemnify and save buyer harmless from same.

Sellers paid Schick the $10,000 commission provided for in the listing agreement. Apex made a claim for half of the commission. As members of the Board, both Apex and Schick had previously agreed to submit any commission dispute to arbitration. Apex filed a request and agreement to arbitrate with the Board. Schick then filed a response and agreement to arbitrate. On November 3, 1988, the Board's arbitrators conducted an evidentiary hearing to determine whether Apex was entitled to half of Schick's commission. Four days later the arbitrators filed a decision awarding Apex half of Schick's commission and requiring Schick to pay Apex the $5,000 within 20 days. The award was printed on a boiler-plate form and contained no findings of fact.

Schick refused to pay Apex. On January 18, 1989, Apex filed suit in the Superior Court, Law Division, seeking an order confirming the arbitration award and compelling payment under its terms. Schick filed an answer and third-party complaint against the Board alleging, inter alia, that the arbitrators' failure to make specific findings of fact and conclusions of law constituted misconduct and warranted the vacation of the award.

Apex moved for summary judgment. After oral argument the judge granted the motion and ordered the Board to formulate written findings of fact and conclusions of law regarding the applicability of the waiver agreement to the issues ...


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