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Maltese v. Consultedge

July 16, 2008

JOHN MALTESE, MISTER MESSAGE, M&M CONSULTING A/K/A MQM CONSULTING AND TERRES TECHNOLOGY, PLAINTIFFS-APPELLANTS,
v.
CONSULTEDGE, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, No. DC-7847-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 14, 2008

Before Judges Wefing and Parker.

Following a bench trial, the trial court entered a judgment dismissing plaintiffs' complaint and entering a judgment of $8,250 on defendant's counterclaim.*fn1 The trial court later denied plaintiff's motion for reconsideration. Plaintiff has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part.

Maltese is in the technology staffing industry; he would locate employees for businesses which needed to fill a position on their staffs and, in return, would receive a fee computed as a percentage of the salary of the new employee. In October 2005 Maltese entered a contract with defendant Consultedge that contained the following pertinent provisions:

. . . The fee due . . . will be 15% of the total base salary. The total fee is due on the start date of candidate, net 15 days. Provided the invoice is paid in-full in accordance with our schedule of service charges within fifteen (15)-calendar days of the candidates start date, M&M extends a ninety (90) calendar day candidate replacement guarantee.

If the candidate is no longer employed by your company on the ninetieth (90th) calendar day, from start date, M&M will replace the candidate at no charge to your company. . . Our fee is due on the candidate start date. The fee is due for the sourcing, interviewing, screening and referring a candidate that starts a position within your company.

Maltese referred Joseph Camarata to defendant, and defendant hired Camarata on or about November 21, 2005. The parties dispute when Camarata commenced his employment with defendant. Plaintiff asserts Camarata started on Monday, November 22, 2005, while defendant contends Camarata started on Tuesday, November 29, 2005.

Plaintiff forwarded his invoice, which defendant received on December 1, 2005. The invoice indicated a November 29, 2005, start date and was in the amount of $8,250. At the bottom of the invoice was the following:

Make all checks payable to: MQM Consulting, Inc. (formerly known as Mister Message) Total due in 15 days. Overdue accounts subject to a service charge of 1% per month.

On Friday, December 16, 2005, defendant forwarded its check for $8,250 to plaintiff.

Because defendant was not satisfied with Camarata's performance, it terminated him on Monday, February 27, 2006, and notified plaintiff that it had done so. Plaintiff referred another prospective employee to defendant, Sean Reilly. On March 24, 2006, Noel Gibson, defendant's sales director, sent an e-mail to plaintiff thanking him for "Joe Camarata's replacement." Reilly started working for defendant on March 27, 2006, and on April 16, 2006, plaintiff forwarded an invoice for $7,500 for his recruiting fee.

Defendant protested the invoice, contending that Reilly was a replacement candidate for Camarata, for which no fee was due under the parties' contract. Plaintiff denied this, and asserted he was entitled to payment because defendant had not paid the ...


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