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FOX & LAZO-ATLANTIC COMMER. GROUP v. RESOLUTION TR

March 30, 1994

FOX & LAZO-ATLANTIC COMMERCIAL GROUP, INC., Plaintiff,
v.
RESOLUTION TRUST CORPORATION as Receiver for SECURITY SAVINGS BANK, SLA, DELILAH LAND CORPORATION, and CHANCELLOR LAND CORPORATION, Defendants.



The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, District Judge:

 Plaintiff's case was originally filed in the Superior Court of New Jersey on October 4, 1990. On January 15, 1993, a Notice of Substitution was filed in the state court action by which RTC, as receiver for Security Savings Bank, SLA was, substituted as a party defendant for Security. On January 19, 1993, RTC as receiver removed this action from the Superior Court of New Jersey, Law Division, Atlantic County to this court pursuant to 28 U.S.C. ยง 1441(a). For the reasons stated herein, defendants' motion for summary judgment on Counts One and Two of the complaint is hereby granted.

 Background

 The present case is one by plaintiff Fox & Lazo, Inc., Atlantic Commercial Group (Fox & Lazo) to recover a real estate brokerage commission on the sale of defendants' real property. The property, Delilah Office Park, 1001 Delilah Road, Egg Harbor Township, Atlantic County, New Jersey (Property), was owned by defendant Delilah Land Corporation. Delilah was and is a wholly owned subsidiary of defendant Chancellor Land Corporation. Chancellor was and is a wholly owned subsidiary of defendant Security Savings Bank, SLA. Pursuant to the provisions of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) the Office of Thrift Supervision, by Order No. 92-510, dated December 4, 1992, declared Security Savings Bank, SLA insolvent and appointed Resolution Trust Corporation as Receiver for Security. (Defs. Br. at 4).

 On January 23, 1989, Delilah and Fox & Lazo entered into a listing agreement (Listing Agreement) with respect to the rental of the Property. Under the terms of the Listing Agreement, Chancellor agreed to employ Fox & Lazo as its exclusive listing agent for purposes of obtaining a tenant to lease the Property; the term of the Listing Agreement was for the six-month period beginning January 23, 1989 and running through July 22, 1989. The Listing Agreement also provided that in the event that Chancellor decided to sell the Property during the term of the Listing Agreement, Chancellor would execute an appropriate Exclusive Listing Agreement with Fox & Lazo as agent.

 On July 14, 1989, Edward Temple, President of Fox & Lazo, sent a letter (the Temple Letter) to Roy Hyman, Executive Vice President of Chancellor, proposing an arrangement whereby Fox & Lazo would market the Property for the sum of $ 4,200,000; and "Furthermore, Security Savings Bank agrees to pay Fox & Lazo, Atlantic Commercial Group a commission of $ 200,000.00 when a sale, exchange or joint venture of the specified property is effected by Fox & Lazo, Atlantic Commercial or by any person, firm or corporation." (Temple Letter, Defs. Ex. B).

 On July 19, 1989, Roy Hyman sent a letter (the "Hyman Letter") to Edward Temple stating that:

 
. . .
 
The above sale is subject to the approval of the Board of Directors of Security Savings Bank, SLA.

 Hyman Letter, Defs. Ex. C. *fn3"

 Plaintiff claims that John Millar, President of Avalon Commercial Corporation, was a timely registered sale prospect of Fox & Lazo, as evidenced by Temple's letter of July 22, 1989, to Hyman which listed "John Millar, President, Avalon Commercial Corporation" as a registered sales prospect. (Pl. Ex. 8.) Plaintiff asserts that Hyman recognized Millar's registration, as evidenced by a letter sent by Hyman to a second real estate firm, Siracusa Company, listing "John Millar, Avalon Commercial Corporation" as a sale prospect registered by Fox & Lazo. (Letter from Roy Hyman to John Buckley of Siracusa Co., July 28, 1989, Pl. Ex. 9.) Millar was the eventual purchaser of the property as explained below.

 Negotiations between Delilah and John Millar ceased in August 1989 when no compromise could be obtained between Delilah's modified asking price of $ 3,800,000.00 and Avalon's offer of $ 3,000,000.00. Plaintiff continued to participate as a broker in these negotiations even after Delilah lowered the asking price. The ninety-day period after the July 22 expiration of the term of the Listing Agreement ended on October 20, 1989.

 In the latter part of November 1989, Delilah entered into a contract for the sale of the Property with one Howard Needleman for the sum of $ 3,580,000.00. Due to Needleman's subsequent financial inability to complete the transaction, the contract of sale was mutually voided by Delilah and Needleman. (Letter from Howard Needleman to Roy Hyman, December 20, 1989, Defs. Ex. E.)

 In December 1989, negotiations regarding the purchase of the Property resumed between Security and Millar when Hyman recontacted Millar. (Hyman Internal Memo dated Feb. 7, 1990, Pl. Ex. 14.) Although there is some dispute about who initiated the second contact, construing the facts in the light most favorable to the non-moving party, these negotiations were renewed by Roy F. Hyman or Ronald Seagraves (President of Security Savings Bank, SLA) in December 1989, without apprising Fox & Lazo.

 In a letter of January 18, 1990, Seagraves presented Millar with the terms of "a counter-proposal to your offer of August 4, 1989" which included a $ 3,300,000.00 purchase price for the Property. (Letter from Seagraves to Millar, Jan. 18, 1990, Pl. Ex. 10.) In his letter of February 6, 1990, Millar responded with a "final offer" of $ 3,150,000.00 for the Property (Letter from Millar to Seagraves, Feb. 6, 1990, Pl. Ex. 11.) Millar's offer was accepted the same day by Seagraves. (Letter from Seagraves to Millar, Feb. 6, 1990, Pl. Ex. 12.) The defendants completed the transaction and closed title on the subject property on June 30, 1990 for the sum of $ 3,150,000.00. On October 4, 1990, Fox & Lazo filed the complaint against Security, Delilah, Chancellor, John Millar, and Avalon Commercial Corporation, in the Superior Court of New Jersey, for, inter alia, the recovery of the brokerage commission, more than two years before the RTC was appointed as Receiver for the failed Security.

 Discussion

 I. Summary Judgment Standard

 The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the non-moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not ...


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