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Tannenbaum & Milask Inc. v. Mazzola

March 05, 1998

TANNENBAUM & MILASK, INC., PLAINTIFF-APPELLANT,
v.
LARRY MAZZOLA, JOSEPH FANELLI, DEFENDANTS-RESPONDENTS, FRANCIS GLENNING, ANN GLENNING, DEFENDANTS.



Argued: October 22, 1997

On appeal from Superior Court of New Jersey, Law Division, Camden County.

Before Judges Shebell, A.a. Rodr¡guez and Coburn.

The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.

The issue presented in this appeal is whether an individual who owns an interest in real property or shares in a closely-held corporation may be held personally responsible for commissions on a listing agreement signed by him although all owners of the property or all shareholders of the corporation do not join in signing the listing agreement. We hold that such an individual may be held responsible for commissions.

Plaintiff Tannenbaum & Milask, Inc., a real estate brokerage firm, appeals from a summary judgment which dismissed its suit for commissions due against Larry Mazzola and Joseph Fanelli. Plaintiff's complaint alleged that Mazzola and Fanelli failed to remit the commission due plaintiff under an exclusive listing agreement for the sale of a restaurant/lounge known as the Sailfish Cafe and the real property on which it is located. The Sailfish Cafe was owned by Sailfish Management, Inc. (SMI), a corporation in which Mazzola and Fanelli are the sole stockholders. Mazzola is the president of SMI and Fanelli is the secretary. The real property was owned by Mazzola and Fanelli as tenants in common with Mazzola owning a 60% interest and Fanelli a 40% interest. *fn1

Mazzola and Fanelli moved for summary judgment. Plaintiff filed a brief in opposition and cross-moved for leave to amend the complaint to add SMI as a defendant. The Judge granted the motion for summary judgment and dismissed the complaint. We affirm that portion of the judgment which dismissed the claim for commission against Fanelli. We reverse that portion of the judgment which dismissed the claim for commissions against Mazzola. Plaintiff's motion to join SMI as a defendant, which was rendered moot by the summary judgment, should be granted.

It is undisputed that on May 28, 1994, Mazzola signed a listing agreement for the sale of the business and property. It provides for an exclusive listing for sale for a twelve-month period at a 10% commission. The listing was signed by Mazzola twice: on behalf of SMI and on his own behalf. Mazzola's signature was witnessed by Carmen Giletto, an employee of plaintiff. It is uncontroverted that Fanelli did not sign the agreement. The business and property were sold to the Glennings for about $830,000 on May 18, 1995.

There is a sharp dispute regarding Mazzola's intent in signing the listing agreement. Plaintiff alleges that Mazzola represented that he had authority to bind Fanelli and SMI and signed the agreement unconditionally. Thus, plaintiff argues that upon signing, Mazzola bound himself, Fanelli and SMI to an exclusive listing for the sale of the business and property. Because the sale of these assets to the Glennings occurred within the exclusive listing period, plaintiff asserts that it is entitled to the agreed commission.

Mazzola maintains that prior to signing the listing agreement, he advised Giletto that he would not agree to sell the business or the property unless: (1) a commission amount was specified in the event that the property was sold to Joseph Sutor, and (2) Fanelli joined in signing the listing agreement. According to Mazzola,

Giletto told me to sign the listing agreements and once we agreed on a specific dollar amount, Mr. Fanelli was to sign the agreements and I was to mail them back to Carmen Giletto. In fact, I still have the original envelope that Giletto gave me since we never mailed signed agreements back to . Carmen Giletto knew that until we agreed on a specific commission amount in the event Sutor purchased the property and until Joseph Fanelli signed the listing agreement, there was no authorization for to act as the listing agent.

Mazzola further asserts that the same day he signed the listing agreement, he also sent a letter to Giletto advising him that he and Fanelli would not be returning the listing because Giletto refused to change the language in the event the property was purchased by Sutor. Plaintiff denies receipt of such a letter. *fn2

In a cursory oral opinion, the Judge granted the motion for summary judgment. The Judge did not address plaintiff's motion for leave to join SMI, the corporate owner of the business, as a defendant.

On appeal, plaintiff contends that the Judge erred because: (1) under principles of Agency and the Statute of Frauds it is entitled to summary judgment; (2) the listing agreement satisfies the Statute of Frauds because Mazzola signed it as an agent of Fanelli, thereby binding both parties to the agreement; (3) Mazzola had apparent authority to sign the listing agreement on behalf of SMI, and (4) Mazzola and Fanelli cannot present evidence of an oral agreement contemporaneous with the listing agreement because such evidence violates the Parole Evidence Rule.

At the outset we note that the decision under review is the Judge's grant of a motion for summary judgment. Our standard of review is established by Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995). Briefly stated that standard is, whether viewing all competent evidential material presented, in the light most favorable to the non-moving party, the evidence is so ...


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