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Mainardi Management Co. v. Estate of Fanale

August 14, 2009

MAINARDI MANAGEMENT CO., PLAINTIFF-APPELLANT,
v.
ESTATE OF SALVATORE J. FANALE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3368-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2009

Before Judges Rodríguez, Payne and Waugh.

Plaintiff, Mainardi Management Co. (Broker), appeals from a no cause determination in favor of the Estate of Salvatore J. Fanale (Landowner), following a bench trial. We affirm.

Sometime in 1998, Landowner and Broker began discussing the possibility of a lease agreement with CVS. At that time, Landowner was primarily a residential developer with little experience in commercial development. In 1999, Broker sent CVS a proposed site plan. In May 2000, Broker sent Landowner a proposed commission agreement that offered a payment arrangement of twenty percent of the commission upon execution of the lease and site plan approval, and eighty percent upon CVS's opening for business and obtaining a certificate of occupancy. After several months of negotiations, CVS signed a letter of intent on December 13, 2000. Landowner and Broker signed a formal commission agreement, which Broker drafted, providing:

The [Landowner] hereby agrees that if a Lease is executed between [Landowner] and [CVS], [Landowner] will pay [Broker] a commission in the amount of One Hundred Fifty Thousand ($150,000) Dollars to be paid out as follows:

Twenty Thousand ($20,000) Dollars upon execution of Lease and [Landowner]'s receipt of Site Plan Approval.

Eighty Thousand ($80,000) Dollars upon [CVS] obtaining a Certificate of Occupancy and opening for business. Twenty Five Thousand ($25,000) Dollars each year for the next two (2) years on the anniversary of [CVS] obtaining a Certificate of Occupancy.

Despite the execution of the commission agreement, negotiations over the terms of the lease and the site plan continued for the next two years. Finally, Landowner and CVS signed a lease agreement on July 11, 2003. Landowner paid Broker the first $20,000 installment of the commission.

On July 25, 2003, Landowner obtained the necessary zoning variances and approvals, subject to various conditions, including final approval from the New Jersey Department of Environmental Protection (DEP). Landowner's development plan included construction of three buildings: the CVS store, a bank, and an office building. Landowner was specifically required to obtain a permit from the DEP for excess septic usage in the office building, which was separate from and unrelated to the CVS building.

For reasons that are not clear in the record, Landowner never commenced construction. The parties dispute whether Landowner was unable to obtain the necessary permits to obtain final approval for construction and, if this was the case, whether Landowner did so intentionally in order to escape the lease. Landowner alleges that additional permits and approvals were required. Broker contends that all prerequisites to commencing construction had been satisfied prior to CVS's termination of the lease. The record is devoid of any indication as to what additional approvals may have been necessary, the status of such approvals, and the degree of effort Landowner engaged in to obtain those approvals.

Broker made several attempts to purchase the property to preserve the lease with CVS but was unsuccessful. On April 29, 2005, CVS exercised its rights under the lease to terminate because Landowner had failed to complete the building and grant possession by August 1, 2004.

Broker sued for the remaining balance of the commission agreement. Prior to the start of the bench trial, the judge urged the parties to settle and indicated he was inclined to rule in Landowner's favor if the parties went forward. The parties did not reach a settlement agreement. Each party made an offer of settlement, neither offer was accepted. The matter proceeded to trial. Broker put on its case, which ...


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