On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, L-408-98.
Before Judges Baime, Fall and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Illva Saronno Corp. ("Saronno"), appeals from the entry of an order entered on December 23, 1999, upholding a listing agreement between the parties and dismissing plaintiff's complaint against defendants, Liberty Hill Realty, Inc. ("Liberty Hill") and its principal owner and operator, Mrs. Renay Salamon ("Salamon").
The litigation arises out of a dispute involving two agreements executed between the parties. Plaintiff is the successor-in-interest to Memi Reina Financial Services Realty Corporation ("MRFSR"). Liberty Hill is a corporation principally engaged in the real estate brokerage business. Salamon is a licensed real estate broker.
Salamon acted as a broker on behalf of herself and her four neighbors for the sale to MRFSR of an assemblage of 508 contiguous acres of undeveloped rural farmland in Hunterdon County, which included the 143-acre Salamon family farmland. On September 10, 1986, MRFSR's vice president and Salamon, acting as president of Liberty, executed a letter memorandum confirming the parties' agreement that MRFSR would purchase the entire assemblage, less Salamon's retained 25% interest in her family's tract. MRFSR further agreed that it would purchase Salamon's retained interest at a later date on specified terms after the receipt of certain development approvals. Part of the agreement was that MRFSR granted to Liberty the exclusive listing for the sale of the assembled tract and any listed contiguous lands which it may acquire, or any parts thereof
for a term commencing upon the execution of this agreement and continuing for a period to end . . . ten years after the first final approval of any part of the Project or two years beyond the end of any governmentally imposed construction schedule, whichever is longer . . . at a price of $25,000 per acre or at a greater or lower price if we so agree.
The agreement further stated:
We will immediately execute a formal listing agreement with Liberty Hill Realty, Inc. You have agreed that if our development is sold as undeveloped land, you [Liberty/Salamon] will receive a commission equivalent to 6% if you are the selling broker (10% total commission shall be paid if you are not the selling broker) and 4 1/2% commission shall be paid on each unit sold after the issuance of a building permit for said unit in the event that the property is sold after construction has occurred and lands are fully developed.
The parties also agreed that "exclusive control of development of the Project shall lie with . . . [MRFSR which] agrees to use its best reasonable efforts to expeditiously and economically develop the Project."
Furthermore, according to paragraph eight of the agreement:
In the event that . . . [MRFSR] determines to sell the Project or any portion which may include your property before any approvals have been obtained, we will pay you 100% of the fair market value of your interest in the property, which shall be determined by the method set forth in Paragraphs 1 and 2, or at a minimum price of $21,000.00 per acre, whichever is higher. We agree that we will not sell any of the Project for less than its fair market value.
Contracts for the purchase of the five properties were completed and proceeded to closing with a commission on each sale paid to Liberty Hill. On December 23, 1986, the parties executed an "Exclusive Listing Agreement," "supplement[ing] and amend[ing] the Letter Memorandum of the parties dated September 5, 1986," under which MRFSR, its successors and assigns, agreed to pay Liberty Hill "a commission as hereinafter set forth, if the property, or portion thereof, to be sold, as the case may be, is undeveloped, based upon a sales price of ...