On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-14650-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Coburn.
Plaintiff appeals from an "order for judgment" entered on June 9, 2006, dismissing all claims against defendant Sergio Tapia a/k/a/ Celso Tapia ("defendant" or "Tapia") following a bench trial.*fn1
Plaintiff, a licensed real estate broker, and defendant entered into a real estate listing commission agreement, on April 14, 2004, to run through the "expiration date" of October 30, 2004. As the property was not sold in that period, and defendant wanted to increase the sales price, on November 2, 2004, the parties entered into another such agreement. That agreement contained an "expiration date" of November 30, 2005.
However, on May 18, 2005, the parties executed a "Garden State MLS Property Change Form" which "permanently" withdrew the property from the multiple listing service. The form stated that "Temporarily or Permanently removing a property from the ML Service does not release the property owner of contractual obligations created by a listing contract."
Thereafter, defendant listed the property with another broker, Bella Homes, and entered a "real estate contract" to sell the property to a third party before the "expiration date" of defendant's listing agreement with plaintiff. After closing, plaintiff received a portion of the commission due as the agent for the buyer,*fn2 with the balance distributed to the new broker, and this action was commenced.
Plaintiff's broker, Auriello Arias, testified that the second listing agreement was for a year because he wanted "to sell" the property "at full price," that defendant agreed to the year listing, and that defendant signed the agreement so providing before Arias did. According to plaintiff's owner, Laura Bettschneider, defendant subsequently came to her office and "specifically said in English" he wanted an "unconditional withdrawal, so [she] automatically knew he was speaking to another [broker]." She testified defendant said he was looking to buy a one-family home, and asked to see the listings for same, before listing his house for sale. She learned of Bella Homes listing thereafter because one of plaintiff's agents represented the buyer when defendant sold the house through that broker.
Defendant testified that Arias "pressure[d]" him to sign an extension and thought he signed a three month extension.*fn3 He did not realize it was a year extension until he went to a new broker months later. According to defendant after visiting the new broker, he requested the "unconditional withdrawal." The following colloquy was developed during defendant's direct testimony:
Q: Okay. Now would you have signed that five percent listing with Bella Homes if you still understood that you were owing UNIcase [plaintiff] six percent?
Q: Now at the time of the closing, which I believe was August of '05, had anybody from UNIcase informed you with a written notification, oral, that ...