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Dickman Business Brokers v. John Tomasulo and J.M. Tomasulo

June 9, 2011

DICKMAN BUSINESS BROKERS, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
JOHN TOMASULO AND J.M. TOMASULO, INC., T/A JOHN & MICHELLE'S BEST LITTLE LUNCHEONETTE, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2609-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 17, 2011

Before Judges Carchman and Messano.

In this action to recover a sales commission for the sale of its luncheonette, defendants, J.M. Tomasulo, Inc., t/a John & Michelle's Best Little Luncheonette, and John Tomasulo in his individual capacity (collectively referred to as defendant), appeal from an order of the Law Division granting summary judgment in favor of plaintiff, Dickman Business Brokers (DBB or plaintiff). Plaintiff alleges that defendant violated the agreement by entering into negotiations to sell the business to a third-party - Frank Spinelli*fn1 - during the contract period, and as a result, plaintiff was deprived of its commission. We conclude that the motion judge erred by granting summary judgment and defendant raised genuine issues of material fact that must be resolved by the trier of fact. Accordingly, we reverse and remand for trial.

The underlying facts are simply stated. On January 5, 2006, plaintiff and defendant entered into a listing agreement for the sale of defendant's business, John and Michelle's Best Little Luncheonette (the luncheonette). The agreement provided in relevant part:

In consideration of your listing and endeavoring to sell, exchange or lease the business and/or property or any portion thereof listed hereof, the undersigned hereby grants to [DBB] the sole and exclusive right to sell, exchange and lease said business and/or property or any part thereof for a period of 6 months.

Seller further agrees to sell, exchange or lease said business and/or property or any part thereof within 20 days of an offer to purchase, lease or exchange said business and/or property at the price and upon the terms set forth hereof, or for any other price or terms which the undersigned may agree to accept or shall accept.

The undersigned agrees to pay [DBB] a commission of 10% (percent) of the purchase price or $12,000, which ever is greater, upon anyone procuring a purchaser . . . . The undersigned agrees not to convey said business and/or property unless said commission is paid to DBB at closing in full and unless said broker first receives a copy of the executed contract within five (5) days of signing the contract.

The undersigned agrees to pay DBB a commission in the event said property is sold, exchanged, leased, conveyed, or disposed of by any other person, corporation, or broker including the undersigned during the term of this Agreement, or after the expiration date set forth herein above, if said transaction is consummated with a person, firm or corporation to whom the property was submitted by DBB or anyone else including the undersigned during the term hereof.

The undersigned agrees to refer to DBB all inquiries regarding the lease, exchange, or purchase of said business and/or property whether from real estate brokers, prospective purchasers, or prospective tenants and all negotiations shall be through you the listing broker.

Following the execution of the listing agreement, plaintiff showed the luncheonette to potential buyers. On February 14, 2006, plaintiff advised defendant that there was an offer of $130,000, but defendant rejected the offer because it did not match the asking price of $180,000.

Another offer was forthcoming as on June 28, 2006, plaintiff informed defendant that Chris Farley had made a written offer for $162,000. Defendant rejected this offer as well. On July 7, 2006, two days after the listing agreement had expired, plaintiff informed defendant that Farley had made another offer for $175,000. Plaintiff never responded to the second Farley offer.

However, on July 10, 2006, five days after the expiration of the listing agreement, defendant entered into a contract of sale with Spinelli. The sale price was $162,000, with a deposit of $16,000.*fn2 The closing occurred on July ...


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