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Exit A Plus Realty v. Zuniga

September 5, 2007; as amended September 7, 2007

EXIT A PLUS REALTY, PLAINTIFF-APPELLANT,
v.
EDISON ZUNIGA, TERESITA ZUNIGA, DEFENDANTS-RESPONDENTS, AND
SHARON LOCKETT, DEFENDANT.
COLDWELL BANKER JABLONSKI REAL ESTATE, PLAINTIFF-APPELLANT,
v.
EDISON ZUNIGA, TERESITA ZUNIGA, DEFENDANTS-RESPONDENTS, AND SHARON LOCKETT, DEFENDANT.



On appeal from the Superior Court of New Jersey, Special Civil Part, Hudson County, Docket Nos. DC-22950-05, DC-23117-05, and DC-577-06.

The opinion of the court was delivered by: Coleman, R. B., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted May 8, 2007

Before Judges Axelrad, R. B. Coleman and Gilroy.

Plaintiff Coldwell Banker Jablonski Real Estate (Coldwell Banker) appeals from a May 25, 2006, order dismissing its complaint for commissions allegedly earned as a result of a sale of real estate from defendants Edison and Teresita Zuniga, to defendant Sharon Lockett the buyer. That sale occurred after the expiration of the exclusive listing agreement between Coldwell Banker and the Zunigas, but within what is referred to as the "extended protection period" under the agreement.

In separate complaints, plaintiff Coldwell Banker and plaintiff Exit A Plus Realty (Exit A Plus), sued the Zunigas and Lockett for real estate commissions which plaintiffs alleged were owed to them upon the closing of title between the Zunigas and Lockett. The matters were consolidated and following a bench trial, the court entered judgment in favor of defendants, reasoning that the Exclusive Right to Sell Agreement (the listing agreement) was unenforceable because it violated N.J.S.A. 45:15-17f in that the listing broker (1) had caused or allowed the sellers to sign the listing agreement with a significant term missing and (2) had failed to leave a copy on the day they signed it. Relying on Winding Brook Realty v. Platzer, 166 N.J. Super. 575 (Law Div. 1979), aff'd on other grounds, 173 N.J. Super. 472 (App. Div.), certif. denied, 85 N.J. 119 (1980), the trial court dismissed plaintiffs' complaints, concluding that one who violates the public policy of the State as reflected in a statute should not be permitted to enforce a commission agreement. In reaching that conclusion, the trial court noted that this court in Winding Brook Realty did not find it necessary or appropriate to reach the legal issue as to whether a violation of N.J.S.A. 45:15-17f would bar an action to recover a commission predicated upon a sale. The trial court, nevertheless, determined that such a violation bars recovery. We now reject such a bright line determination and reverse the May 25, 2006, order.

On April 14, 2005, the Zunigas executed a standard multiple listing agreement granting to Coldwell Banker the sole and exclusive right to sell the Zuniga home in Bayonne from that listing date until the stated expiration date of June 14, 2005. The sellers agreed to pay the broker four and one-half percent of the offering price of $474,900 or of any sale price accepted by the sellers. The listing agreement disclosed that the broker offered a commission split of two percent minus $200 to potential cooperating brokers.

The broker's representative was Christopher Piechocki, who had been a friend of Edison Zuniga for approximately ten years. Piechocki came to the Zuniga home and the parties signed the listing agreement and related documents, but the court found, based on the testimony of Zuniga, that Piechocki did not leave a copy of the listing agreement with the sellers at the time of the execution.*fn1 In addition, the court found the listing agreement was not complete when it was signed, that the space providing for the so-called extended protection period had been left blank at the time the listing agreement was signed but had been filled in on the copy that Piechocki mailed to the Zunigas under cover of a letter dated April 15, 2005. That portion of the agreement specified the period of time following the expiration of the agreement during which the sellers would pay the broker's commission if the property were sold to a buyer who was introduced to the property during the period of the exclusive listing. The subject provision provided in part as follows:

In the event the property, or any part of it, described in this Agreement is the subject of a written or other agreement by the Buyer and Seller or their designees or is sold conveyed, leased, or in any way transferred within __________ after the expiration of this Agreement to anyone to whom the Seller, Broker or the Broker's salesperson, sub-agent, (participating Broker/Cooperating Broker) or Buyers' Broker/Buyers' Agent or Transaction Broker/Transaction Agent had introduced the property during the terms of this Exclusive Listing, the compensation as indicated above shall be earned by the Broker and payable to the Broker by the Seller, unless the Seller executes a new Exclusive Right to Sell Listing Agreement to take effect upon or anytime after the expiration of this Agreement.

Edison Zuniga testified he received the April 15 letter, with referenced attachments, in the mail, and was surprised to note that Piechocki had entered "90 days" into the blank space on the listing agreement where the space had previously been left blank. He promptly called Piechocki to discuss it and Piechocki told him "[he] shouldn't worry about anything, that wasn't anything." According to Zuniga, at no time did Piechocki explain what the ninety days meant. Nevertheless, because Zuniga had agreed to list the property with plaintiff for "60 days", he put a line through the handwritten "90 days" and above it Zuniga wrote "60".

Thereafter, in about mid-May 2005, Exit A Plus, through its sales agent, Jeet Eucell, produced defendant Lockett as a buyer for the property. The Zunigas and Lockett entered into a contract with a purchase price of $465,000, subject to the property being appraised at that price or above. The appraisal came back at $450,000, and the sellers refused to lower the price. Rather, by letter dated June 15, 2005, one day after the expiration of the exclusive listing agreement with Coldwell Banker, they advised the buyer that if the buyer was not willing to purchase the property at the original contract price of $465,000, then the sellers were declaring the contract null and void. That cancellation of the contract was accepted by the buyer's attorney the same day.

Several days later, the Zunigas agreed to lower their price to $450,000 and Lockett agreed to purchase the property. Title closed on July 19, 2005, and upon learning of the sale, the brokers demanded the four and one-half percent commission provided in the listing agreement which the sellers' refused, prompting Coldwell Banker to file the first of its two complaints in the Special Civil Part.*fn2

On appeal, plaintiff contends that it substantially complied with the requirements of N.J.S.A. 45:15-17 and that it therefore was entitled to recover from defendants the commission specified in the exclusive listing agreement. The New Jersey Association of Realtors (NJAR) was permitted to file an amicus curiae brief, and it argues that the listing agreement is enforceable even assuming, after its execution, there may not have been strict compliance with N.J.S.A. 45:15-17f. NJAR also argues, however, that equitable principles of substantial compliance, promissory estoppel and quantum meruit apply and that the Legislature did not provide in N.J.S.A. 45:15-17 (or anywhere else) that not providing a listing agreement to a seller at ...


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