On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5580-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Payne, Baxter and Koblitz.
Plaintiff, Walter Wolf, a former employee of defendant, C.B. Richard Ellis (CBRE), a real estate brokerage firm, filed suit against his former employer seeking commissions on real estate transactions with the Snapple Beverage Group (Snapple) (Count One), commissions on a real estate transaction involving Montclair State University (MSU) (Count Two), damages for tortious interference by CBRE with prospective business relationships (Count Three), damages for wrongful discharge (Count Four), and damages resulting from CBRE's breach of its covenant of good faith and fair dealing (Count Five). CBRE moved to dismiss the complaint, arguing that Wolf's commission claims were subject to internal resolution and that the claim of wrongful discharge was subject to arbitration by the American Arbitration Association (AAA). Wolf filed a cross-motion in which he argued that CBRE's motion was actually a premature motion for summary judgment because of its reliance on various documents in addition to Wolf's complaint; that the arbitration that CBRE alleged to have occurred in the matter should be deemed a sham and thus null and void; and that a stay of CBRE's motion should be entered pending completion of discovery.
The motion judge agreed with CBRE's position and dismissed Counts One, Two, Three and Five of Wolf's complaint with prejudice, orally finding that each concerned Wolf's right to commissions, which was a matter subject to internal resolution. The judge granted CBRE's motion to compel arbitration of the wrongful discharge claims contained in Count Four. Wolf has appealed. We reverse and remand for further proceedings.
The record indicates that, on September 14, 1998, as a condition of his employment, Wolf entered into an employment agreement with Insignia/ESG, Inc. (ESG), a real estate broker that CBRE terms its "predecessor." CBRE accepted the agreement after it acquired ESG. The agreement contains terms of relevance to the present dispute that we will discuss later in this opinion.
According to the complaint, in December 2007, Wolf cold-called Snapple to determine its interest in a 220,000-square-foot warehouse building located in Clifton. As the result of that and subsequent calls, Wolf learned of Snapple's interest in leasing a 1,000,000-square-foot distribution center in central New Jersey, and that it was also seeking a national services provider for all of its real estate needs. Wolf informed employees of CBRE's Dallas, Texas office of both business opportunities. However, Wolf was then informed by his New Jersey manager, Ray Sohmers that "the powers to be" no longer wanted plaintiff's active participation in the Snapple opportunities, and that the industrial specialists Wolf had invited to work with him on the assignment were not capable of handling such a large requirement. The prohibition was reinforced in a subsequent meeting with CBRE's New Jersey "Management Team," which included Sohmers, Tom Tucci*fn1 and Patrick Luzzi. In August 2008, CBRE announced that it had obtained the Snapple national account and that the account manager was Seth Kelly, a person whom Wolf had contacted when he became initially aware of the opportunity. Wolf received no commission on the Snapple business.
Wolf alleged in his complaint that the MSU business opportunity commenced with a cold call to St. Joseph's Medical Center in Paterson to determine its interest in leasing a 200,000 square foot medical office building located in West Paterson. During the twelve months that followed, St. Joseph's advised Wolf that it was seeking to form a joint venture with MSU to form a "new medical/teaching/health facility." As a consequence, CBRE employees, including Wolf, sought to interest the joint venture in a large office building owned by the Hampshire Company in Bloomfield. At about that time, the four CBRE employees involved in the transaction, including Wolf and employees David Sherman and Marc Trevisan, who later left the company, agreed to split any commission earned into four equal shares. Thereafter, St. Joseph's withdrew its participation, but MSU's interest continued. Wolf has alleged that, despite an additional agreement by the four men to split the commission from the MSU lease, with one-fourth to each participant, Sherman and Trevisan took the position that the lease constituted a "new deal" in which Wolf had no participatory interest. As a result, Wolf contacted Sohmers to request his assistance in receiving his share of the commission. Wolf alleges that Sohmers responded on or about November 10, 2008 that Wolf could demand arbitration, but that he would be penalized $5,000 if the arbitration were unsuccessful. Nonetheless, Wolf states that he demanded that arbitration take place. However, according to Wolf, "Defendant never contacted the Plaintiff regarding his claim, never asked for documentation to support his claim, never allowed the Plaintiff to present witnesses or even to speak with the other 'team' members." Further, when Wolf requested that Sherman and Trevisan come to CBRE's Saddle Brook offices to discuss the matter, they refused.
Wolf has alleged additionally:
92. On or about January 22, 2009, the Defendant terminated the Plaintiff;
93. On or about February 2, 2009, the Plaintiff advised the Defendant's New Jersey Management Team that a synopsis should be prepared by the Plaintiff in preparation for arbitration;
94. On or about February 6, 2009, the Defendant's Management Team, by e-mail, advised the Plaintiff that since the Plaintiff was no longer employed by the ...