On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8090-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
Plaintiffs appeal from the dismissal of their complaint in an action seeking damages for breach of a contract for the sale of real estate, breach of the realtor's fiduciary duties, fraud, conspiracy to defraud and legal malpractice. We affirm substantially for the reasons stated by Judge Cifelli in his oral decisions of April 13 and August 28, 2007, and provide a brief explanation for our conclusion that plaintiffs' claims of error lack sufficient merit to warrant more than brief discussion in a written opinion. R. 2:11-3(e)(1)(E).
The following factual statement is based on the complaint, admissions made at oral argument on defendants' motions and the evidential materials submitted on the motions for summary judgment. The land at issue consists of five lots, with a total area of approximately five acres. The lots are designated as 9, 10, 11, 12 and 13 of Block 380 on the tax map for the City of Long Branch. The land was owned by plaintiff Maragen Corporation. In June 2002, plaintiff Mario Argenziano, the sole shareholder, officer and director of Maragen Corporation, decided to sell the property. Defendant Thomas Yaccarino, who is associated with defendant Atlantic Group Realty, Inc. (Atlantic), approached Argenziano and told him that he had an interested buyer. Yaccarino had represented buyers in previous sales of property held by Argenziano, and Yaccarino and Atlantic managed rental properties held by Argenziano. The interested buyer was defendant By the Sea Real Estate, LLC (By the Sea). Argenziano did not sign a listing agreement with either Yaccarino or Atlantic. He agreed that Atlantic Group would be paid a brokerage commission of $100,000 through any contract of sale with By the Sea.
On October 18, 2002, defendant William Webber, on behalf of By the Sea, and plaintiff Argenziano, on behalf of Maragen, executed a contract under which Maragen agreed to transfer the property to By the Sea for $2,000,000. Argenziano retained defendant Joseph Meehan, an attorney, in connection with this transaction.
The contract for sale addresses payment of brokerage commissions. Argenziano warranted that there were no "brokerage commissions due to any broker by reason of [his] act . . . other than to Atlantic . . ." By the Sea agreed to "be solely responsible for paying" Atlantic a brokerage commission of $100,000.
The contract was contingent upon By the Sea obtaining all approvals it required to improve the property with "market rate residential townhome units." The parties agreed that By the Sea would have a twenty-two month period, beyond an initial due diligence period of a minimum of sixty days, to secure the approvals. They further agreed that upon payment of an additional $50,000, which would not be credited against the purchase price, By the Sea could obtain a six-month extension if it had been "diligently seeking" the approvals. By the Sea was required to pay $5000 toward the purchase price every ninety days between the expiration of the initial due diligence period and closing.
On October 17, 2004, By the Sea tendered $50,000 and sought a six-month extension. Argenziano, on advice of defendant Meehan and contrary to his own view of By the Sea's diligence and his desire to cancel the contract, accepted the $50,000 and agreed to the extension.
The contract prohibits assignment. The relevant paragraph provides:
This Agreement shall not be assigned without the written consent of the Seller, except that the Buyer may have the right to transfer the Agreement prior to closing to an entity formed by it and controlled by it or its principal for the purpose of developing the Property. Any such assignment shall not relieve the Buyer of any obligations hereunder.
Prior to the closing of the sale from plaintiffs to By the Sea, Webber signed a contract agreeing to sell lots 11, 12 and 13 of Block 380 to Liberty Circle, LLC for $1,500,000. Defendant Yaccarino and his partner in Atlantic, defendant Andrew Boeckel, signed the agreement as the buyers. On the same day, Webber signed a second contract agreeing to sell lots 9 and 10 of Block 380 to defendant Troutman Port, LLC for $1,000,000. Defendants Yaccarino and Boeckel signed that contract as the buyers. Both contracts were signed on January 13, 2005, and both proposed a closing date of April 15, 2005, with a $50,000 credit to the buyers if closing were to take place on or before April 1, 2005.
The closing on the transfer from Argenziano to By the Sea took place on March 30, 2005, at the office of Argenziano's attorney, defendant Meehan. According to Argenziano, Meehan told him that he could not attend the closing. The closing on the transfer from By the Sea to defendants Liberty Circle, LLC and Troutman Port, LLC also ...