On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1421-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2007
Before Judges Axelrad, Sapp-Peterson and Messano.
Plaintiff Foxtons, Inc. (Foxtons) appeals from the motion judge's order of June 27, 2006, dismissing its complaint against defendants Cirri Germain Realty and Santo Cirri. Foxtons contends that the motion judge mistakenly converted defendants' motion to dismiss for failure to state a claim, R. 4:6-2(e), into a motion for summary judgment, R. 4:46, because no discovery had taken place. It further argues that the motion judge erroneously applied the standards governing a motion to dismiss concluding its complaint was insufficient as a matter of law. We have considered these arguments in light of the motion record and applicable legal standards. We affirm.
This lawsuit arose from a single letter or flyer (the flyer) admittedly drafted and circulated on February 1, 2006, by defendants, a licensed real estate agency and its principal. Prepared on the agency's letterhead, and signed by Santo Cirri, the flyer in its entirety read:
The Misleading 6% v. 3% Commission Myth
Please don't be fooled with the advertised concept that there is a 3% saving in real estate commission fees that will put thousands of dollars in your pocket!
Keep in mind commissions by law are negotiable. There are no set fees. Claiming that most other offices charge 6% fees is ridiculous! Most offices do not charge what is asserted. So why then is this type of advertising continued? This is easy to answer, to mislead and to gain a competitive advantage over quality offices. Most reputable offices will not emphasize or advertise that they too are full service, and will not place a commission fee and state full service on signs. Why? A highly regarded office doesn't have to! Remember all commissions are negotiable; we evaluate each situation and then discuss a fair commission fee that will generate maximum exposure by all agents in our Multiple Listing System.
Since home values have escalated, the real estate industry has overwhelmingly made adjustments in reducing fees to home owners. Most offices like ours today negotiate on an average 4.5%-5% commissions.
But if your house sits below towers or power lines, or adjacent to a busy highway, it's only logical to negotiate with your real estate agent a commission that will cause more agents to show your home.
Don't be fooled by the 3% commission, which offers 1% for agents to sell your home. Real estate agents must earn a living like anyone else. What is the likelihood of an experienced agent bringing their buyer to view a house for a 1% commission? Well the probability is not good at all, extremely risky and time consuming to you, which results in fewer showings, less offers and less money in your pocket.
Today homeowners and buyers are more prone to use an experienced well-trained real estate agent. Our sales staff for example averages 18 years of real estate experience. Given honest facts, you decide what is best if you're looking to buy or sell a home. Feel free in calling our office. My agents have a wealth of information to help in your real estate needs.
Plaintiff filed its complaint on February 9, 2006. Describing itself as a "full-service real estate brokerage" that offered the public a "discounted commission rate of three percent," plaintiff alleged defendants' flyer was defamatory and libelous per se, and it also sought damages under the theories of tortious interference with a prospective economic advantage and product disparagement. Although the complaint claimed to have attached a copy of the flyer and incorporated ...