On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3712-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and R. B. Coleman.
Defendants third-party plaintiffs C&L Developers, Inc. (C&L) and Sal Catania (Catania)*fn1 appeal from a February 16, 2007 order of the Superior Court, Law Division, Passaic County, denying their motion for the release of funds placed in escrow pursuant to an agreement between defendants and plaintiff LaCorte Agency, LLC (LaCorte), as assignee of Mike LaCorte Agency. After reviewing the record in light of the contentions advanced on appeal, we reverse.
C&L is a developer that built eight houses on a tract of land in Clifton. In July 2002, C&L entered into an exclusive listing agreement with LaCorte, a company engaged in the business of selling real properties. In accordance with the agreement, LaCorte sold seven of the eight homes and received a commission for each sale. In May 2006, C&L entered into a listing agreement with Weichert Realtors (Weichert) for the marketing and sale of the remaining house. The last house went under contract in August 2006 and title closed in December 2006. LaCorte did not receive a commission. This prompted LaCorte to file a lis pendens and a complaint, alleging that C&L breached the parties' contract, C&L was unjustly enriched and that Catania maliciously interfered with LaCorte's contractual rights. On October 2, 2006, C&L filed a counterclaim against LaCorte and a third-party complaint against Mike LaCorte, individually.
On November 10, 2006, C&L and LaCorte entered into an agreement (the Agreement) for LaCorte's discharge of the lis pendens in consideration for a portion of the proceeds of the sale of the property to be held in escrow, pending litigation concerning the entitlement to the commission. Specifically, the Agreement provided:
2. Deposit of Funds. In accordance with the terms of the Agreement between the parties, commensurate with the closing of title, the sum of Thirty-Five Thousand Dollars ($35,000.00) shall be deposited with the Escrow Agent to serve as security for the payment of any sales commission or other fees and costs ultimately found to be due to plaintiff on the complaint.
3. Termination of Escrow. The escrow shall terminate in full upon payment of any settlement or judgment or pursuant to an order of a court of competent jurisdiction. The Escrow Agent shall thereafter forthwith deliver to defendants [C&L and Catania], their designee, or in the case of a court order, to the party therein specified, all sums held in escrow.
On November 29, 2006, LaCorte, as a third-party defendant and plaintiff, filed a fourth-party complaint against Weichert and an entity named Gi Li. In an order dated December 1, 2006, the court instructed LaCorte to discharge the lis pendens, awarded counsel fees to defendants for having to make a motion to discharge the lis pendens and dismissed LaCorte's complaint as to Catania, individually.
Thereafter, C&L moved for the release of the escrowed funds. On February 16, 2007, the court entered an order denying LaCorte's motion, citing paragraphs 2 and 3 of the Agreement. On April 24, 2007, the court entered an order granting C&L's motion for summary judgment, dismissing the remaining counts of LaCorte's original complaint. In the same order, the court again denied C&L's request that the escrowed funds be released. This order was accompanied by a letter opinion of the same date.
On May 1, 2007, C&L filed a motion for reconsideration of the April 24, 2007 order. That motion, though unopposed, was denied. Thereafter, we granted C&L's motion for leave to appeal.
On appeal, C&L contends that either: (1) the trial judge wrongfully denied the motion because he did not realize that the case against Catania had been denied by a separate motion the previous year, and he believed that the case against Catania was still viable; or (2) the trial judge erred by wrongfully interpreting the Agreement as establishing a general fund for the satisfaction of any judgment obtained by C&L against any party to the litigation. LaCorte, Weichert and Gi Li have not submitted briefs on appeal.
"Interpretation and construction of a contract is a matter of law for the court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998); see also Bradford v. Kupper Assoc., 283 N.J. Super. 556, 583 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996) ...