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Realty v. Bibbo

April 10, 2000

ISLAND REALTY, PLAINTIFF-APPELLANT,
v.
SUSAN DECKER BIBBO, DEFENDANT-RESPONDENT.



Before Judges Stern, Kestin and Steinberg.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 8, 2000

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County.

Plaintiff appeals from the trial court's orders dismissing the complaint on defendant's motion for summary judgment and denying plaintiff's motion for reconsideration. The complaint alleged an entitlement to a real estate broker's commission based upon a six-month exclusive listing agreement between the parties. We affirm.

The basic facts are uncontroverted. The parties had entered into a "New Jersey Shore Multiple Listing Service Inc. Exclusive Right to Sell Listing Agreement" effective from May 13, 1998 to November 13, 1998, covering defendant's house in Loveladies. The listing price was $359,000. The agreement established a sales commission of six percent, and a rental commission of twelve percent. Thirty-day exclusions to the listing agreement were provided in respect of three specified individuals. The agreement also provided for a sharing of the commission with other generating brokers.

On July 23, 1998, defendant orally communicated her decision to plaintiff to remove the house from the market. She confirmed that decision in writing the following day.

On July 27, plaintiff faxed to defendant an unsigned, illegible agreement of sale for the listing price from a purchaser who had been produced by another realtor. A legible version of that unsigned agreement was faxed to defendant the following day. The agreement of sale was not signed by the purchaser until July 29. The signed document was not received by defendant and she did not sign either document which she had received.

Based upon her decision to withdraw the house from the market, defendant did not consummate the sale, and she rejected plaintiff's demands for its commission for having produced a buyer. Plaintiff sued in five counts for the full commission called for by the listing agreement. *fn1 The first and third counts of the complaint sought the $21,540 sales commission alleged to be due based, respectively, on breach of contract and unjust enrichment grounds. The second and fifth counts sought punitive damages respectively for "malicious and intentional acts" and "misrepresentations [made] with a malicious and/or tortious intent[.]" The legal theory upon which the fourth count was based is unclear. It contained the following recital:

2. Defendant knew or should have known that upon entering into its contract with the Plaintiff, Plaintiff would rely upon the rights and responsibilities set forth in said contract and would expend time and money in marketing the subject property.

3. However, upon the production of a ready, willing and able buyer, seller refused to sell the subject property for that price previously agreed to in the contract referenced above.

That count also sought judgment for the $21,540 sales commission, on the basis of "injure[y] by the mispresentations made by defendant."

In a written statement attached to the dismissal order, Judge Ford expressed her reasons for granting defendant's motion for summary judgment and dismissing the complaint. The statement recited in part:

Mrs. Bibbo did not sign the agreement, since she felt she had removed the house from the market, and further, since she found the terms to be unacceptable; although the offer was for full price, the initial deposit of $1,000 and the additional deposit of $35,900 were not ...


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