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Eric Bram and Company v. Kent Plaza Associates

January 19, 2012

ERIC BRAM AND COMPANY, PLAINTIFF-RESPONDENT,
v.
KENT PLAZA ASSOCIATES, DEFENDANT-APPELLANT, AND SCOTTSDALE PARTNERSHIP, A NEW JERSEY GENERAL PARTNERSHIP; EDWARD FLATEMAN; JOSE PEREIRA; AND COHEN SCHATZ ASSOCIATES, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-005316-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 21, 2011

Before Judges Fuentes, Graves, and Harris.

This appeal involves a commercial real estate broker's commission for a shopping center lease originally procured in 1988. Plaintiff Eric Bram and Company (EB&C) sued Kent Plaza Associates (Kent), the current owner of a shopping center located in Howell, for refusing to pay a commission triggered by events two decades later. The Law Division granted summary judgment to EB&C for the $64,136.96 commission plus a contractually-reallocated attorney's fee of $21,378.98. We affirm the judgment awarding the commission, but reverse and remand the attorney's fee award for reconsideration.

I.

A.

On February 27, 1987, EB&C entered into an exclusive brokerage agreement with Jose Pereira, Jr., the then-owner of the land that was being developed into the Kent Road Plaza shopping center, which granted EB&C the "sole and exclusive right and authority to sell or lease the property." The brokerage agreement provided that in the event EB&C produced a tenant, it would be paid a commission of six percent of the gross aggregate rentals for the term of the lease plus any extensions, options, renewals, continued occupancies, rental of additional space, re-negotiations, taking space at another premises owned by [Pereira], or purchase thereof by the purchaser/tenant, its successors or assigns whether same occur during or subsequent to the within contract term.

The brokerage agreement also provided that [Pereira] agrees in the event of a sale or other transfer of the property that [Pereira] shall cause the purchasers or transferee to assume or otherwise agree to pay to [EB&C] all sums payable hereunder or which may become payable hereunder with respect to the subject property, and [Pereira] shall furnish [EB&C] with a true copy of said Assumption Agreement.

Lastly, regarding an attorney's fee, the brokerage agreement stated the following:

In the event it should become necessary for [EB&C] to institute a lawsuit for nonpayment of commission hereunder, and should [EB&C] be successful, [Pereira] shall be responsible for all reasonable legal fees, costs and court costs incurred by [EB&C].

On May 20, 1988, Pereira*fn1 and Pizza Huts of Monmouth County, Inc. (Pizza Hut) entered into a twenty-year commercial lease at Kent Road Plaza. The lease gave Pizza Hut the option to rent the location for "three (3) additional periods each of five (5) years" following the initial twenty-year term. Furthermore, the lease permitted Pizza Hut to "assign its interest in this Lease or sublet, or license the use of, the whole or any part of the Demised Premises." Similarly, Pereira had "the right to transfer, assign and convey, in whole or in part, the [Kent Road Plaza] and any and all of its rights under this [l]ease, and in the event [Pereira] shall thereby be released from any further obligations hereunder." The lease also specified that Pereira would "assign all of [his] right, title, interest and obligations in, to and under this [l]ease to Scottsdale Partnership," a New Jersey general partnership with which he was affiliated.

In addition, section thirty-six of the lease expressly stated:

[Pereira] and [Pizza Hut] represent and warrant each to the other that each has not dealt with any real estate agent or broker in connection with this transaction other than [EB&C], . . . and agree to indemnify and save each other harmless from and against all loss, cost and expense incurred by reason of the breach of such representation and warranty. [Pereira] agrees to pay [EB&C] any commissions owing in connection with this transaction for its ...


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