On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4860-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Waugh.
Plaintiffs Paramus Realty, Dingman Realty and Robert Dingman appeal from an order granting summary judgment to defendants G & A Builders, Inc.; G & A Builders, LLC; Joseph LoGrasso; John LoGrasso; LoGrasso Builders, Inc.; and other unnamed parties, and dismissing their complaint as time-barred. We affirm.
Plaintiff Robert Dingman is a licensed real estate broker and the owner of plaintiffs Paramus Realty and Dingman Realty. Plaintiffs alleged they formed a joint venture with defendants, who are real estate developers. According to plaintiffs, they would receive a commission in return for locating property for defendants, and marketing and selling a residence constructed on the property. Plaintiffs alleged they located several suitable properties, defendants acquired the properties and they constructed residential dwellings on the various lots.
It is not disputed that G. & A. Paramus I, L.L.C. (G & A Paramus), an affiliate of defendants, executed two real estate listing agreements with plaintiff Paramus Realty. Each agreement had a two-year term from July 25, 2001 to July 24, 2003. Each agreement concerned a lot in Paramus on which a house was to be constructed by defendants. G & A Paramus agreed to pay Paramus Realty a 4% commission of the sales price of each property. A similar agreement was executed for another Paramus property on August 1, 2001. Several of the identified properties sold and defendants paid a commission to plaintiffs. On February 25, 2003, however, defendants terminated their business relationship with plaintiffs. At that time several properties remained unsold. One sold on May 28, 2003. The remaining properties sold on October 8, 2003 and March 5, 2004. Plaintiffs did not receive a commission on the last three sales.
It is also not disputed that plaintiffs were aware on February 25, 2003, that defendants had terminated their agreement. Paramus Realty signs were removed from the unsold properties, and defendants listed the unsold properties with a new realtor. Moreover, on March 24, 2003, plaintiffs filed a complaint against defendants in which they alleged defendants' breached the July 25, 2001 agreements. Plaintiffs voluntarily dismissed this complaint.
Plaintiffs filed the present complaint on May 28, 2009. Defendants filed a motion for summary judgment on counts one (breach of contract), two (legal and equitable fraud), and five (wrongful termination of the joint venture) as barred by the six-year statute of limitations governing contract actions.
N.J.S.A. 2A:14-1. Defendants contended that the statute of limitations commenced on February 25, 2003, when they terminated their contractual relationship with plaintiffs. In response, plaintiffs urged that the statute of limitations did not commence to run until defendants sold the first of the three remaining properties on May 28, 2003.
Judge de la Cruz resolved the single legal issue, i.e., when the statute of limitations began to run, by holding that the breach occurred on February 25, 2003, when defendants removed the Paramus Realty signs from the properties, expressly informed Dingman that he would no longer have the exclusive listing of the properties, and listed the properties for sale with another realtor. The judge, therefore, entered judgment in favor of defendants.*fn1
The single issue before this court is whether the statute of limitations commenced on February 25, 2003 or May 28, 2003. We review this legal issue de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
N.J.S.A. 2A:14-1 provides that
[e]very action at law . . . for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced ...