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GK Realty Services, LLC v. Stopar

March 13, 2008

GK REALTY SERVICES, LLC, PLAINTIFF-APPELLANT,
v.
ALESH AND TANJA STOPAR, DEFENDANTS-RESPONDENTS, AND JIMMY ZORN AND JIMMY'S REAL ESTATE HOLDING COMPANY, LLC, (PREVIOUSLY IDENTIFIED AS JIMMY'S COOKIES), DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1744-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 10, 2007

Before Judges S. L. Reisner, Gilroy and Baxter.

Plaintiff, GK Realty Services, LLC, appeals from the November 3, 2006, order of the Law Division, dismissing its complaint against defendants Alesh and Tanja Stopar for a real estate broker's commission, based on a jury verdict of no cause for action. We affirm.

I.

Plaintiff is a licensed commercial real estate company owned by Greg Kelman, a licensed real estate broker. Defendant Jimmy Zorn is the owner and operator of defendant Jimmy's Real Estate Holding Company, LLC (JREH), and of Jimmy's Cookies, Inc. Alesh and Tanja Stopar, husband and wife, are owners of commercial property located at 18-01 River Road, Fair Lawn (the Property).

Plaintiff began its business relationship with Zorn in 1992 when Kelman solicited Zorn to rent, on behalf of Jimmy's Cookies, a building for which Kelman was the listing agent. Zorn leased that building for two consecutive five-year terms, and before the second term expired in August 2003, Zorn decided to relocate Jimmy's Cookies to a larger building. Zorn discussed the relocation with Kelman and other real estate agents, and looked at various properties with them. However, near the end of the second lease term, because Zorn had not located a suitable property, he extended his lease for eighteen months (until February 2005).

In April 2004, Kelman located the Property and scheduled a meeting with Alesh Stopar. Alesh met Kelman at the Property and informed him how to enter the building when showing it to prospective buyers. Kelman asked Alesh to give plaintiff an exclusive listing on the Property. However, Alesh declined because he had already contacted Team Resources, a real estate brokerage firm with which he had done business before to list the Property.

Shortly after meeting Alesh, Kelman showed the Property to Zorn. Zorn was interested in purchasing the Property and authorized Kelman to offer Alesh $2,525,000. By an e-mail dated April 15, 2004, Kelman sent the offer to Alesh, stating that if the Stopars agreed to sell the Property to Zorn, plaintiff would receive a commission equal to 5% of the sale price. Within a day of his receipt of Kelman's e-mail, Alesh informed Kelman that because he was ready to sign an exclusive listing agreement with Team Resources, he wanted to contact its staff for advice on the matter. Alesh discussed Zorn's offer with David Cantor, an employee of Team Resources. Cantor offered to give Jimmy's Cookies a forty-five day "exclusive." Alesh agreed.

On April 20 and 21, 2004, Cantor and the Stopars executed a six-month exclusive-listing agreement, which provided that the Stopars would pay Team Resources a 5% commission based on the sale price, if it secured a sale of the Property without the aid of another broker. However, if another broker was involved in the sale, then the Stopars would pay a 2% commission to Team Resources, and a 4% commission to the other broker. If Jimmy's Cookies entered into contract for the Property within forty-five days from the date of the agreement, Team Resources would receive no commission on the sale. Although the listing agreement was silent as to whether plaintiff would receive a commission if the Stopars sold the Property to Jimmy's Cookies, Alesh believed plaintiff would have been entitled to a commission, if Kelman had secured the sale within forty-five days of its execution.

Around the time the Stopars and Team Resources executed the listing agreement, Alesh rejected Zorn's offer, explaining to Kelman that he wanted $2,700,000 for the Property. Kelman relayed that to Zorn, and about a week later Zorn authorized Kelman to offer $2,575,000. On April 26, 2004, Kelman met Alesh in his office and informed him of Zorn's second offer. In an April 27, 2004, e-mail, Kelman confirmed that offer to Alesh and reiterated that if the Stopars sold the Property to Zorn they would pay Kelman a 5% commission.

By letter dated April 29, 2004, Alesh rejected Zorn's second offer, explaining that he would not sell the Property for less than $2,700,000. Alternatively, Alesh suggested a five-year rental agreement with an option to buy in October 2006, for $2,850,000. Zorn refused the counteroffer, instructing Kelman to offer Alesh $2,625,000; Kelman did that in an April 30, 2004, e-mail, which also included the 5% commission provision. Alesh verbally responded that he would not accept less than $2,700,000 for the Property.

Ten to fourteen days later, Kelman contacted Alesh, offering to reduce his commission by $25,000 if Alesh would accept Zorn's $2,625,000 offer. Alesh refused, and the negotiations ended. Kelman began searching for other properties for Zorn, and Alesh began negotiations with another potential buyer.

In June 2004, Zorn contracted to purchase a property in Carlstadt. The broker on that deal was Fred Fisher, an agent of Team Resources. Zorn informed Kelman about the contract, and asked Kelman to follow up with him in about one month. According to Kelman, he continued to look for properties for Zorn in the interim. Zorn, however, was unaware that Kelman had been looking for properties for him because Kelman had not contacted him again until January 2005. In September 2004 Zorn decided not to purchase the Carlstadt property and continued his search.

In October 2004 Zorn drove past the Property and noticed a Team Resources sign on the lot. Because he saw people inside the building, he stopped and asked them if anyone had any information on the building. Subsequently, he was given Alesh's card, and Zorn telephoned him, inquiring whether the Property was still available. Alesh responded affirmatively. According to Zorn, he did not call Kelman to find out if the Property was still for sale because he wanted a quick answer, and had not heard from Kelman "in a while."

During their brief conversation, Alesh asked Zorn if he had previously looked at the Property with Kelman. Zorn replied yes, and neither discussed Kelman any further. Alesh testified that he neither contacted Kelman, nor did he ask Zorn to contact him because Team Resources had been given the exclusive listing for the Property.

On October 26, 2004, the Stopars signed a second exclusive agreement with Team Resources because the first agreement expired or was about to expire during that month. The second agreement differed from the first in terms of commission, providing that Team Resources would receive a 5% commission on any sale, but that if Jimmy's Cookies bought the Property, then Team Resources would receive a flat fee of $50,000. The second listing agreement, however, did not contain a commission-sharing provision in the event that another broker was involved in a sale. Sometime between October 2004 and December 2004, Zorn agreed to buy defendants' property for $2,700,000. Although Zorn had initially believed that the Property was overpriced at $2,700,000, he agreed to buy it because he "had become a bit more desperate," as his lease was about to expire and his rent was about to double.

In December 2004, Kelman learned that Zorn and Alesh had negotiated a sale of the Property. Kelman went to Alesh's office demanding a commission, but Alesh refused to discuss the matter with him. Alesh did not believe Kelman was entitled to a commission because Kelman had not secured a sale within forty-five days of the first exclusive agreement.

In January 2005, Zorn and the Stopars executed a contract of sale. Kelman played no part in either the negotiations or the drafting of the contract; Cantor, Zorn's agent through Team Resources, handled the matter. The contract closed title in June 2005.

On March 9, 2005, plaintiff filed its complaint against Jimmy's Cookies and the Stopars, alleging that plaintiff was the procuring broker on the sale of the Property. The complaint alleged causes of action in breach of contract, malicious interference with plaintiff's prospective economic advantage, and quantum meruit. On November 10, 2005, plaintiff filed an amended complaint, which substituted JREH as defendant for Jimmy's Cookies and added Jimmy Zorn as a defendant. The amended complaint contained seven counts: 1) breach of contract; 2) breach of the covenant of good faith and fair dealing; 3) breach of an implied contract; 4) tortious interference with plaintiff's contract with the Stopars; 5) tortious interference with plaintiff's prospective economic advantage; 6) violation of the New Jersey Antitrust Act; and 7) tortious refusal to deal (conspiracy).

The matter was tried to a jury. Near the close of plaintiff's case, plaintiff dismissed all claims against Jimmy Zorn and JREH, and agreed to the dismissal of Counts Four through Seven against the Stopars. At the end of plaintiff's case, the Stopars moved for an involuntary dismissal. The court granted the motion in part, dismissing Counts One and Two, determining that they were barred by the statute of frauds (SOF); and denied the motion as to the third count, alleging breach of an implied contract. Although the amended complaint did not specifically seek damages under a quantum meruit theory, the trial judge concluded that this theory was included within the claim of breach of an implied contract, and permitted plaintiff to proceed to the ...


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