On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2143-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
Plaintiff Site Search of New Jersey, Inc. (Site Search), a licensed New Jersey real estate broker, appeals from the trial court's grant of summary judgment to defendants, dismissing Site Search's complaint seeking a real estate commission. The trial court determined that Site Search's claim was barred by the Statute of Frauds. N.J.S.A. 25:1-16(b). The court rejected Site Search's argument that there was no "transfer of an interest in real estate" that triggered the Statute. We agree and affirm.
Mark Olinsky had been a real estate professional since the early 1970s. He founded Site Search in 1992 or 1993. In order to learn about potential real estate projects, in late 2005 or early 2006, Olinsky contacted Michael Canuso (Canuso), who along with John Canuso, Sr., were engaged in real estate development through various business entities. Olinsky considered the Canusos a prestigious residential developer.
Canuso told Olinsky they were working on a project with residential and commercial components. Olinsky requested, and Canuso provided, information on the development. Olinsky initially showed it to a potential client who was uninterested, but Olinsky kept the information on file.
A. Site Search Brings Madison Marquette and Canuso Together.
In early 2006, Olinsky was contacted by a long-time business acquaintance, Jay Vigdor, who had taken a position with a firm known as Madison Marquette.*fn1 Vigdor told Olinsky that Madison Marquette was interested in significant real estate transactions involving retail development. Olinsky forwarded the information he had received from Canuso. Vigdor presented the project to his superiors at Madison Marquette, who expressed interest in meeting with the Canusos.
Olinsky initially represented that he was working on behalf of Madison Marquette. Olinsky wrote to Canuso on April 21, 2006 to request the meeting, stating, "Michael, we spoke a month or so ago relating to the retail opportunity in Harrison . . . . My client, a high end retail developer is interested in pursuing an opportunity in Harrison if it is available." (emphasis added). The meeting occurred on May 5, after which Olinsky wrote to John Canuso, Sr. to thank him for "taking time with us this morning." (emphasis added). Canuso also sent an e-mail to Olinsky stating "[i]t was nice mtg. with you and your client last week." (emphasis added). At that point, Olinsky had not discussed his entitlement to a commission with representatives of Madison Marquette, or the Canusos.
In mid-May, Olinsky conveyed to Canuso that Madison Marquette representatives wished to meet with Canuso again while they attended an industry convention in Las Vegas. Olinsky had no further involvement with planning the meeting, and had no direct involvement in any subsequent meetings or negotiations between Madison Marquette representatives and the Canusos.
B. Olinsky's Efforts to Obtain a Commission Agreement.
At the end of May, 2006, Jay Vigdor e-mailed Olinsky offering to split whatever commission he received from Madison Marquette. On June 16, Olinsky contacted Canuso via e-mail and stated, "I believe it[']s time to reach an understanding relating to the potential real estate commission due for the transaction." He offered to draft an agreement for Canuso's review. Canuso responded, "As far as the commission agreement, go ahead and put something together for our review."
On June 22, Olinsky e-mailed Canuso a proposed commission agreement that identified the property as "Intersection of Routes 55 & 322, Harrison Township, Gloucester County, N.J.," the owner as Camco Management LLC and Canuso Communities, the purchaser as Madison Marquette of Washington, D.C., and proposed a commission of $2.50 per square foot of commercial approved GLA (gross leasing area) for all phases of the project. On July 8, Olinsky sent a follow-up e-mail stating that he had not heard anything from the Canusos regarding the proposal. Various e-mails were exchanged between Olinsky and Canuso, and Olinsky and Vigdor, regarding the status of the deal and the progress with Township approvals for the next several months.
On November 13, 2007, Olinsky sent an e-mail to Canuso referring to another meeting with Canuso. "As we discussed, the $25,000 'Referral Fee' offered by MM [Madison Marquette] is totally unacceptable." Olinsky reminded Canuso of his June 22, 2006 proposal and conceded Canuso had never accepted it. "I would like to note at this time that you at no time accepted the terms of the 6/22/06 Commission Agreement." Olinsky proposed, "[i]n order to gain closure to this issue[,] Site Search will agree to accept a one-time fee amounting to $250,000 as its total compensation relating to the transaction[,]" which would be due upon execution of a formal agreement between "Canuso Properties and Madison Marquette." His e-mail did not expressly indicate who would be liable for the $250,000 payment.
On November 29, 2007, Olinsky wrote to Canuso, indicating that Site Search was seeking a commission from Madison Marquette. He stated, "I hear that MM is announcing their deal . . . next week at the NY Shopping Center Convention. How can we resolve our fee deal with them? Have they responded?" On December 11, Olinsky wrote to Canuso offering to take a one-time fee of $150,000 as a "last ditch effort to settle with Madison." Olinsky also stated that he was fairly certain that Jay Vigdor would accept $25,000. On January 7, 2008, Olinsky wrote an e-mail stating that he would agree to receive $50,000 in February 2008, $50,000 in February 2009, and $100,000 in February 2011. He indicated he would need both Canuso and Madison to sign off on the agreement.
On January 17, 2008, Olinsky wrote another e-mail stating that he understood that the deal had been signed, and indicating that he would like to resolve the commission question in an amiable fashion. In response to another inquiry from Olinsky, Canuso responded that he and his father wanted to meet "to resolve this issue." The record provided does not indicate that the meeting took place or what was discussed. In March 2008 the e-mails begin referring to "feedback" from Madison Marquette regarding the commission. On March 24, 2008, Olinsky wrote that it appeared that Madison Marquette "need[s] to see I'm serious before they will move on this issue." Michael Canuso responded that "Canuso" had agreed to hold Madison Marquette harmless regarding Site Search's commission, and that commission issues needed to be addressed by Canuso. Olinsky indicated that Site Search had a claim for commission from Madison Marquette, writing, "Relating to the fact that u are solely responsible for me . . . they cannot sign my rights away unilaterally." Site Search ultimately did not enter into a signed, written commission with either Madison Marquette, or any entity affiliated with the Canusos.
C. The Real Estate Development.
On December 18, 2007, various business entities affiliated with the Canusos and Madison Marquette, along with defendant Harrison Venture, LLC (Harrison Venture), entered into a series of agreements providing for the assembly and development of numerous parcels of land owned or under contract to Canuso-related entities or Harrison Venture. The project was intended to develop roughly 382 acres in Harrison and Mantua Townships. The transaction was outlined in a "Master Agreement" among several Canuso entities, Camco Management, LLC (Camco), Canglo at Richwood, LLC (Canglo), Canetic Land, LLC (Canetic), Ridge Road at Harrison, LLC (Ridge Road), Richwood Road Corp., and Richwood Investment Group, LLC (Richwood Investment); a Madison Marquette entity, Madison Richwood, LLC*fn2 (Madison Richwood); and Harrison Venture. The authority to develop the assemblage was assigned to a new limited liability company that would be formed at closing, Madison Canuso Richwood Village, LLC (MCR Village),*fn3
whose members would be Madison Richwood, a fifty-percent owner, and Richwood Investment and Harrison Venture, which were each twenty-five percent owners. The Master Agreement provided that Harrison Venture, and Canglo, would transfer certain parcels of identified parcels of land they owned to Madison ...