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Associated Business Brokers, Inc. v. Calderone

June 28, 2010

ASSOCIATED BUSINESS BROKERS, INC., PLAINTIFF-RESPONDENT,
v.
DOMINICK F. CALDERONE, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-330-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2010

Before Judges Stern and J. N. Harris.

This appeal involves a business broker's commission and related fees connected with the unsuccessful sale of a carpet cleaning business. After a two-day, two witness bench trial, plaintiff was awarded an aggregate judgment for $38,168.50, which included the broker's commission, prejudgment interest, and contractual attorneys fees plus costs. Defendant appeals, and we reverse.

I.

Plaintiff Associated Business Brokers, Inc. (Associated) is a corporate business broker. Defendant Dominick F. Calderone, Jr. is an individual associated with High Quality Carpet Cleaning, Inc. (High Quality),*fn1 who held himself out as its owner. Calderone had founded and operated High Quality for several years, but wanted a "change [in] scenery." He decided to sell the business due to resultant difficulties stemming from personal injuries he had suffered in an automobile accident.

On April 5, 2004, Associated and Calderone entered into plaintiff's standard, pre-printed so-called listing agreement (Brokerage Agreement) pursuant to which Associated would endeavor to sell the "assets of the business"*fn2 of High Quality. The only contracting parties were the two parties to this litigation, which does not include the corporate entity High Quality. A commission--equal to ten percent of the purchase price, plus certain adjustments--was agreed to be paid by Calderone to Associated according to the terms of the Brokerage Agreement if any one of the following conditions was satisfied:

(1) Associated "procures a purchaser, ready, willing and able to purchase the Subject on the proposed terms set forth above;"*fn3

(2) Calderone "sell[s], lease[s], trade[s], or otherwise dispose[s] of all or any part of the Subject," regardless of Associated's involvement, during the period April 5, 2004 until October 31, 2004;

(3) Calderone "enter[s] into any offer and acceptance; enter[s] into a contract of sale; accept[s] a deposit; open[s] an escrow or record[s] a notice of intention to sell the Subject;"

(4) Calderone "withdraw[s] the Subject from sale or purport to terminate this Agreement prior to" October 31, 2004;

(5) Calderone "fail[s] or refuse[s] to complete a sale, lease, trade or [dispose] of all or any part of the Subject after entering into a written agreement to do so;"

(6) Calderone "sell[s], lease[s], trade[s] or otherwise dispose[s] of all or any part of the Subject within five years after" October 31, 2004, to any "person, firm or ...


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