NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1967-15T2

SETH POLLACK and SP REALTY

ADVISORS, LLC,

Plaintiffs-Appellants/

Cross-Respondents,

v.

QUICK QUALITY RESTAURANTS,

INC., 

Defendant-Respondent/

Cross-Appellant.

______________________________

Argued September 25, 2017 – Decided

Before Judges Sabatino, Whipple, and Rose.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. 

L-1000-14.

Michael J. Epstein argued the cause for 

appellants/cross-respondents (Epstein Law 

Firm, PA, attorneys; Mr. Epstein, of counsel 

and on the briefs; Michael A. Rabasca, on the 

briefs).

John R. Wenzke argued the cause for 

respondent/cross-appellants (Lasser Hochman, 

LLC, attorneys; Mr. Wenzke, of counsel and on 

the brief).

The opinion of the court was delivered by 

October 26, 2017

APPROVED FOR PUBLICATION

October 26, 2017

APPELLATE DIVISION
2 A-1967-15T2

WHIPPLE, J.A.D.

In this appeal, as an issue of first impression, we are asked 

to consider whether a tenant exercising a right of first refusal 

to adopt terms of a sale contract for certain premises is obligated 

to pay a commission to a third-party broker that secured a 

prospective buyer. Because there was no contractual relationship 

here between the tenant and the third-party broker, or other basis 

to impose liability for the commission, we affirm. 

We discern the following relevant facts from the record.

Randall Corporation and Garbrook Corporation (the sellers) entered 

into a twenty-two-year lease with defendant, Quick Quality 

Restaurants, Inc., at the Butler Plaza Shopping Center (Butler 

Plaza) commencing December 1, 1994. The lease provided defendant

a right of first refusal. 

According to the pertinent lease provision, if the sellers 

received a bona fide purchase offer for Butler Plaza, the sellers 

were obligated to serve a copy of the proposed purchase contract,

with any additional terms, to defendant and afford defendant a 

limited opportunity to meet such terms. To exercise this right,

defendant had ten days to provide the sellers with an unqualified 

written acceptance, which would operate as the final contract and 

bind defendant. Defendant had no right under the lease to

communicate with the third party. The lease also provided:
3 A-1967-15T2

Tenant and landlord each warrant and represent 

to the other that it has not dealt or 

negotiated with any real estate broker or 

salesman in connection with this Lease 

Agreement. Each party indemnifies and holds 

harmless the other party from all damages, 

commissions, legal fees, litigation expenses 

and other liabilities incurred as a result of 

a breach of the foregoing warranty and 

representation by either party.

Plaintiff Seth Pollack is a licensed real estate broker and

principal of co-plaintiff SP Realty Advisors, LLC, and had a 

business relationship with Robert Levi. Levi introduced Pollack

to the sellers, who were planning to sell Butler Plaza. During 

initial talks, the sellers made clear any brokerage commission

paid would come from the purchaser. 

Plaintiffs and Levi found a potential purchaser, Levin 

Properties, LLC (Levin). Plaintiffs and a representative for 

Levin orally agreed Levin would pay plaintiffs a broker's

commission of 1.5% of the purchase price. According to Pollack,

Levin's representative also agreed to draft a commission agreement 

and confirmed via email, on April 3, 2013, the broker's commission 

would be 1.5%. 

On June 26, 2013, the sellers and Levin entered into a 

contract of sale for Butler Plaza for $14,500,000 (the Levin 

contract). The Levin contract identified Pollack as the broker 

and specifically stated, "[p]urchaser shall pay a real estate 
4 A-1967-15T2

commission to Broker pursuant to a separate agreement." 

Additionally, the Levin contract provided the inspection period 

would begin eleven days following defendant's receipt of the 

contract if defendant did not exercise its right of first refusal. 

On July 10, 2013, Levin's representative sent Pollack a 

proposed commission agreement, which stated, "[u]ntil this 

agreement is signed by Levin Properties, . . . it is understood 

and agreed that it shall have no force and effect." Levin never 

signed the agreement.

As required by the lease, defendant was provided with a copy 

of the Levin contract by the sellers' counsel. Levin's and 

plaintiffs' names were redacted from defendant's copy. Although

the Levin contract required the purchaser to pay a real estate 

commission to the broker pursuant to a separate agreement, no such 

separate agreement was incorporated into the Levin contract or 

otherwise provided to defendant. Accordingly, defendant was 

unaware of plaintiffs' identity and the percentage of the broker's 

commission. On July 3, 2013, defendant's counsel sent a letter 

to the sellers' counsel advising him the required due diligence 

materials were not included with the contract and therefore the 

ten-day period to exercise the right of first refusal would not 

commence until the materials were provided. 
5 A-1967-15T2

On July 9, 2013, the sellers' counsel emailed Levin and the 

sellers, informing them defendant had asked about the broker's

commission and inquired whether it should be disclosed to 

defendant. Defendant's counsel testified that, as part of due 

diligence, he asked the sellers' counsel about the broker's 

commission and counsel advised, "Don't worry about it. You don't 

need to know." The sellers' counsel also informed defendant's 

counsel that the separate broker's commission agreement "[is] not 

binding on you." Defendant's counsel then asked the sellers' 

counsel for the name of the broker, a copy of the brokerage 

agreement, and the amount of the brokerage fee. The sellers' 

counsel emailed defendant's counsel stating, "Our purchaser has 

indicated to us that the commission that they will pay is $217,500 

[(1.5%)] of the purchase price." 

Later that day, defendant and the sellers agreed defendant

had until July 19, 2013 at 5:00 p.m. to exercise the right of 

first refusal. On July 19, 2013, defendant exercised its right 

of first refusal, agreeing to be bound by the terms of the Levin

contract. The sellers' counsel testified defendant would be 

obligated to pay the broker's commission because defendant gave 

an unqualified written acceptance of the terms. 

Almost three months later, in October 2013, Pollack called

defendant's counsel who was unaware Pollack was the "broker" in 
6 A-1967-15T2

the Levin contract. Defendant's counsel and Pollack had a previous 

professional relationship. Pollack told defendant's counsel he 

was now working for a new firm and posed a hypothetical situation, 

asking for advice. Pollack asked defendant's counsel whether the 

broker involved in a contract of sale is entitled to a commission 

when a tenant exercised its right of first refusal contained in 

the lease. According to defendant's counsel, he then realized 

Pollack was the unidentified broker and informed him that it was 

inappropriate for him to pose the hypothetical because of the 

conflict of interest. 

On October 17, 2013, Pollack emailed defendant's counsel and 

stated:

I understand the conflict of interest you have 

with regards to the Butler [Plaza]

transaction, however I would like to know if 

your client intends on paying [the] Broker 

commission . . . I am entitled to based on 

. . . my commission agreement with Levin, 

which is incorporated in the [Levin contract].

Defendant's counsel responded on October 21, 2013, informing 

Pollack that defendant 

does not recognize your firm as being a broker 

on the transaction. [Defendant] had a 

preexisting right of first refusal and no 

broker was involved in that transaction. We 

have not been provided with any brokerage 

agreement and have no knowledge of the "Levin" 

party that you reference in your email to me.
7 A-1967-15T2

The sellers and defendant closed on the purchase of Butler 

Plaza on December 2, 2013. No commission was paid to plaintiffs.

On January 28, 2014, plaintiffs filed a complaint against 

defendant asserting breach of contract, breach of an implied 

covenant of good faith and fair dealing, unjust enrichment, quantum 

meruit, and third-party beneficiary. Plaintiffs asserted 

defendant's right of first refusal required it to match any and 

all terms of the Levin contract, including the broker's fees 

referenced in the contract. Defendant counterclaimed asserting a 

violation of the Consumer Fraud Act (CFA) N.J.S.A. 56:8-1 to -198.

On August 5, 2015, plaintiffs moved for summary judgment and,

on September 11, 2015, defendant cross-moved for summary judgment. 

The Honorable Brian R. Martinotti, J.S.C., issued an order and a 

twenty-two page written decision denying plaintiffs' motion, 

granting defendant's motion, and dismissing defendant's 

counterclaim. The judge found no signed writing memorializing an 

agreement between defendant and plaintiffs that required defendant

"to comply with a contract it did not intend to become a party 

to." Additionally, the judge found the statute of frauds barred 

the enforceability of the unsigned commission agreement against 

defendant. 

The judge found the terms of the separate commission agreement 

between plaintiffs and Levin were not incorporated into the 
8 A-1967-15T2

contract of sale provided to defendant, nor were they disclosed 

to defendant when it was provided with a copy of the approved 

offer. Moreover, plaintiffs were not third-party beneficiaries 

because defendant never received a copy of the separate commission 

agreement, did not know the identities of the purchaser or broker 

until Pollack contacted defendant's counsel months later, and 

there was never an agreement between plaintiffs and defendant. 

Additionally, the judge found the redacted information in the

Levin contract belied plaintiffs' argument that they were an 

intended third-party beneficiary. 

As to unjust enrichment, the judge found defendant "would 

have been able to exercise its right upon submission of any buyer's 

offer accepted . . . regardless of whether that buyer was procured 

by a broker or not." As such, plaintiffs did not bestow a benefit 

upon defendant other than that which it had already secured for 

itself. Lastly, the judge dismissed plaintiffs' arguments on 

quantum meruit because they had not established defendant knew 

Pollack expected defendant to pay him. 

As to defendant's claim under the CFA, the judge found 

plaintiffs made no material misrepresentations or omissions to 

induce defendant to purchase Butler Plaza and dismissed the 

counterclaim. Plaintiffs and defendant both appealed.
9 A-1967-15T2

I.

On appeal, plaintiffs argue the trial court should have found 

they were third-party beneficiaries of the right of first refusal. 

Plaintiffs also assert defendant breached an implied covenant of 

good faith and fair dealing, that their claims were not barred by 

the statute of frauds, and they are entitled to recover under a 

theory of quantum meruit. 

When reviewing a trial court's grant of summary judgment, we 

are "bound by the same standard as the trial court under Rule

4:46-2(c)." State v. Perini Corp., 221 N.J. 412, 425 (2015) 

(citations omitted). We "consider whether the competent 

evidential materials presented, when viewed in the light most 

favorable to the non-moving party, are sufficient to permit a 

rational factfinder to resolve the alleged disputed issue in favor 

of the non-moving party." Ibid. (quoting Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "To the extent that 

the grant or denial of summary judgment is based on an issue of 

law, we owe no deference to an interpretation of law that flows 

from established facts." Ibid. (citing Town of Kearny v. Brandt, 

214 N.J. 76, 92 (2013)).

A.

For the same reasons given by the trial judge, we reject 

plaintiffs' argument they were third-party beneficiaries. The 
10 A-1967-15T2

sellers and Levin may have intended Pollack to benefit from the 

Levin contract because he was specifically identified as the 

"broker." However, the Levin contract did not bind defendant to 

the separate commission agreement. Plaintiffs argue the court's

focus on their lack of involvement with defendant's lease was 

erroneous and had no bearing on their status as a third-party 

beneficiary. We disagree.

To determine whether a party is in fact a third-party 

beneficiary, the court must "focus[ ] on whether the parties to 

the contract intended others to benefit from the existence of the 

contract, or whether the benefit so derived arises merely as an 

unintended incident of the agreement." Broadway Maint. Corp. v. 

Rutgers, State Univ., 90 N.J. 253, 259 (1982). Therefore, "[t]he 

determining factor as to the rights of a third-party beneficiary 

is the intention of the parties who actually made the contract." 

Ibid. (citation omitted). The parties who made the contract are 

the ones who agreed upon the terms and create the rights and 

obligations that come from the contract. Ibid. 

Ultimately, the "real test is whether the contracting parties 

intended that a third party should receive a benefit which might 

be enforced in the courts; and the fact that such a benefit exists 

or that a third party is named, is merely evidence of this 

intention." Ibid. If there was no intention that a third person 
11 A-1967-15T2

would receive a benefit from the contract, "then the third person 

is only an incidental beneficiary, having no contractual 

standing." Ibid. The contract need not specifically identify the 

plaintiff, as long as the "pertinent provisions of the contract 

and the surrounding circumstances" demonstrate the parties 

intended the plaintiff to receive a direct benefit from the 

contract. Model Jury Charge (Civil) § 4.10B "Third Party 

Beneficiary" (2009). The question here is not whether a broker 

could ever be a third-party beneficiary; it is whether these 

plaintiffs are third-party beneficiaries of this contract between 

the sellers and defendant. 

The sellers and Levin accounted for plaintiffs' services when 

they executed the Levin contract, listing plaintiffs as the broker 

and tasking Levin's representative with preparing a separate 

written commission agreement. However, the Levin contract and the

separate commission agreement were not finalized, because

defendant exercised its right of first refusal. The Levin

contract, when provided to defendant, was redacted and when 

defendant sought information regarding the broker, the sellers did 

not disclose it. Additionally, defendant's 1994 lease agreement 

with the sellers expressly excluded brokerage commissions. 

There was never any manifestation after the 1994 lease 

agreement that plaintiffs, or any broker for that matter, would 
12 A-1967-15T2

receive a direct benefit. As such, defendant did not intend for

plaintiffs to receive a direct benefit from the contract between

the sellers (defendant's landlord) and itself. Defendant's right 

of first refusal was not contingent upon a broker's involvement 

in procuring a potential purchaser. The right of first refusal,

instead, was contingent upon the seller's receiving a bona fide 

offer for the property, regardless of how the potential purchaser 

was procured. 

We also reject plaintiffs' argument that the trial judge 

erred by ignoring the existence of a valid commission agreement 

with Levin because it was never executed. The separate commission 

agreement, which Levin drafted, stated "[u]ntil this agreement is 

signed by Levin Properties, . . . it is understood and agreed that 

it shall have no force and effect." We concur with the trial 

judge.

B.

We turn to plaintiffs' argument they were entitled to a 

commission by virtue of the right of first refusal in the lease.

A right of first refusal "limits the right of the [landlord] to 

dispose freely of his property by compelling him to offer it first 

to the party who has the first right to buy." St. George's 

Dragons, LP v. Newport Real Estate Grp., LLC, 407 N.J. Super. 464, 

482 (App. Div. 2009) (quoting Mazzeo v. Kartman, 234 N.J. Super.
13 A-1967-15T2

223, 229 (App. Div. 1989)). The right of first refusal depends

on how the parties decide to structure it. Ibid. Here, the right 

was structured in contemplation of "a bona fide third-party offer 

as the triggering event." Ibid. (quoting Mazzeo, supra, 234 N.J. 

Super. at 229). 

We construe a right of first refusal provision under the same 

rules of construction as any other type of contract. Ibid. We

"ascertain the intention of the parties as revealed by the language 

used, the situation of the parties, the attendant circumstances, 

and the objects the parties were striving to attain." Celanese 

Ltd. v. Essex Cty. Imp. Auth., 404 N.J. Super. 514, 528 (App. Div. 

2009). Where the terms of a contract are clear, we enforce the 

contract as written and ascertain the intention of the parties 

based upon the language. CSFB 2001-CP-4 Princeton Park Corp. 

Ctr., LLC v. SB Rental I, LLC, 410 N.J. Super. 114, 120 (App. Div. 

2009). 

To establish a breach of contract claim, plaintiffs must 

prove: the parties entered into a contract, containing certain 

terms; plaintiffs performed what was required under the contract; 

defendant did not fulfill its obligation under the contract; and 

defendant's breach caused a loss to plaintiffs. Globe Motor Co. 

v. Igdalev, 225 N.J. 469, 482 (2016) (citing Model Jury Charge 

(Civil) § 4.10A "The Contract Claim – Generally" (May 1998)). 
14 A-1967-15T2

Plaintiffs bear the burden of proving each element by a 

preponderance of the evidence. Ibid.

"[W]hen a broker[,] who had been duly authorized by the owner 

to find a buyer for his property[,] produced a willing and able 

purchaser who entered into a contract to buy on terms agreeable 

to the owner, the broker has fulfilled his undertaking" and is 

entitled to a commission. Ellsworth Dobbs, Inc. v. Johnson, 50 

N.J. 528, 543 (1967). As for a broker's right to receive a 

commission when a tenant exercises the right of first refusal, 

plaintiffs have provided no compelling precedent either from New 

Jersey or elsewhere to support this claim.

Case law from other jurisdictions has addressed this issue. 

In Fallenius v. Walker, 787 P.2d 203, 205-06 (Colo. App. 1989), 

the Colorado Court of Appeals found the purchaser was required to 

pay the broker's commission because it was included in the 

contracting price, and not doing so would violate the terms of the

right of first refusal provision requiring the purchaser to accept 

all contractual terms. Ibid. Fallenius is not factually analogous

here, however, because the Levin contract did not include the 

broker's commission in the contracting price. Indeed, the contract 

specifically stated the purchase price was $14,500,000 and the 

broker's commission would be determined in a separate agreement. 
15 A-1967-15T2

In City National Bank v. Lundgren, 307 So. 2d 870, 972 (Fla. 

Dist. Ct. App. 1975), the Florida appellate court held a purchaser 

exercising a right of first refusal, who was aware of the 

obligation to pay the broker, could not unconditionally exercise 

the right of first refusal and opt out of the obligation to pay 

the broker. Here, by contrast, the contract of sale did not 

require defendant to pay plaintiffs.

Lastly, plaintiffs cite to Simmons v. Plummer, 120 N.M. 481, 

483-84 (1995), which found a broker was entitled to a commission 

despite a party's exercise of the right of first refusal because 

the broker procured a willing and able potential purchaser. There, 

however, the seller was obligated to pay the commission, not the 

third party who exercised the right of first refusal. Ibid. 

The trial judge found Stein v. Chalet Susse International, 

Inc., 492 N.E.2d 369 (Mass. App. Ct. 1986), more persuasive for 

the proposition that a holder of a right of first refusal is not 

obligated to pay a broker's commission when it was the third-party 

purchaser who agreed to pay the commission at the close of the 

purchase. In Stein, a broker sought to recover a broker's 

commission from the holder of the right of first refusal. Id. at

369-70. The triggering event for the right of first refusal was 

a "bona fide written offer from a fully disclosed party." Id. at

370. The broker claimed the right holder was liable because he 
16 A-1967-15T2

succeeded the third-party purchaser's position who agreed to a 

certain price and promised to pay a commission at the completion 

of sale. Id. at 371-72. Because the sale was never completed 

between the broker and the third-party purchaser, the court found 

the language of the agreement controlled and the broker was only 

entitled to a commission at the close with the third-party 

purchaser. Ibid. Additionally, the court stated it was the 

brokers who deliberately "gave up their right to look to the seller 

for a commission and failed to secure a firm substitute for that 

right." Id. at 372.

While not binding on this court, Stein is instructive. Like 

the broker in Stein, plaintiffs deliberately relinquished the 

right to seek a commission from the sellers and negotiated with 

Levin to receive a commission, while aware of defendant's right 

of first refusal. The contract provided to defendant did not

define plaintiffs as a broker, nor was any commission agreement 

incorporated therein. Additionally, the commission agreement, 

which was not signed by Levin, expressly stated the commission 

would be paid upon the close of title under the terms of the 

contract made between the sellers and Levin. As Levin and the 

sellers never closed on the sale of Butler Plaza, plaintiffs are 

not entitled to a commission. 
17 A-1967-15T2

Plaintiffs argue that when defendant exercised the right of 

first refusal and entered into the contract, it agreed to be bound 

by the obligations set forth in the Levin contract, including the 

obligation to enter into a separate agreement with plaintiffs to 

pay the broker's commission. Therefore, plaintiff's claim 

defendant breached the contract by not entering into the separate 

agreement. We stated in St. George's Dragons, supra, 407 N.J. 

Super. at 483, any ambiguities in the contract must be construed 

in favor of the non-drafting party. 

Construing the contractual ambiguities in favor of the nondrafting party, defendant did not breach the contract. Levin

agreed to pay $14,500,000 and to enter into a separate agreement 

with the plaintiffs on June 26, 2013. The trial judge found the 

July 10, 2013 commission agreement had no force or effect because 

it was never signed and expressly made plaintiffs' commission 

payable upon the closing of title of the contract between sellers 

and Levin. Because the closing of title never occurred between

the sellers and Levin, plaintiffs are not entitled to a commission. 

The trial judge correctly applied St. George's Dragons,

supra, 407 N.J. Super. at 483-85, because the holder of the right 

of first refusal must accept the terms and conditions of the thirdparty offer only if the contract is unambiguous. There, we held 

an ambiguously worded contract did not demonstrate the parties 
18 A-1967-15T2

intended the holder to pay the commissions in addition to matching 

the third-party offer. Id. at 485. Here, the ambiguous wording 

in the Levin contract, requiring purchaser to pay a "broker" a 

commission pursuant to a separate agreement not incorporated into 

the contract, creates no inference that defendant is obligated to 

pay plaintiffs' commission. 

C.

Plaintiffs' other theories of recovery are also unavailing.

In every contract in New Jersey there is the implied covenant of 

good faith and fair dealing, Wilson v. Amerada Hess Corp., 168 

N.J. 236, 244 (2001), to which every party to a contract is bound. 

Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. 

Assocs., 182 N.J. 210, 224 (2005). While this covenant "cannot 

override an express term in a contract, a party's performance 

under a contract may breach that implied covenant even though that 

performance does not violate a pertinent express term." Wilson, 

supra, 168 N.J. at 244. The covenant requires that parties to a 

contract "refrain from doing 'anything which will have the effect 

of destroying or injuring the right of the other party to receive' 

the benefits of the contract." Brunswick Hills Racquet Club, 

Inc., supra, 182 N.J. at 224-25 (quoting Palisades Props., Inc. 

v. Brunetti, 44 N.J. 117, 130 (1965)).
19 A-1967-15T2

A party who claims there has been a breach of this covenant 

must provide proof of "bad motive or intention." Id. at 225. The 

party must also "provide evidence sufficient to support a 

conclusion that the party alleged to have acted in bad faith has 

engaged in some conduct that denied the benefit of the bargain 

originally intended by the parties." Ibid. (citing 23 Williston 

on Contracts § 63:22 at 513-14 (Lord ed. 2002)).

Plaintiffs argue defendant acted with bad motives when it

inquired as to the amount of the commission, but then made no 

further inquiries. But the record demonstrates defendant was 

unaware of plaintiffs' identity when it signed the contract. 

Defendant asked the sellers for information about the broker and 

the commission price because the name of the broker was redacted 

and there was supposed to be a separate commission agreement, 

which was not part of the contract provided to defendant. Pollack 

did not attempt to contact defendant at the time the contract was 

signed. Rather, defendant did not learn of plaintiffs' involvement

as a broker for the sellers until the phone call to defendant's 

counsel in October.

Defendant did not act in bad faith, denying plaintiffs' the 

benefit of the bargain originally intended by the parties as 

defendant did not know of plaintiffs' existence or involvement. 

Plaintiffs were not listed on the contract and the sellers, the 
20 A-1967-15T2

other party to the contract, never disclosed plaintiffs' identity

or their role in the sale of Butler Plaza to defendant. Therefore, 

defendant did not breach the implied covenant of good faith and 

fair dealing because plaintiffs were never intended to benefit 

from the contract between the sellers and defendant. 

D.

We also find no merit in plaintiffs' argument that the trial 

court improperly barred their claims under the statute of frauds. 

Plaintiffs contend that the acceptance of the contractual terms 

required defendant to execute a separate written broker's 

commission agreement. Pursuant to the statute of frauds, N.J.S.A.

25:1-16(b) provides: 

[A] real estate broker who acts as agent or 

broker on behalf of a principal for the 

transfer of an interest in real estate . . . 

is entitled to a commission only if before or 

after the transfer the authority of the broker 

is given or recognized in a writing signed by 

the principal or the principal's authorized 

agent, and the writing states either the 

amount or the rate of commission.

A broker will only be entitled to a commission pursuant to an oral 

agreement if:

within five days after making the oral 

agreement and before the transfer or sale, the 

broker serves the principal with a written 

notice which states that its terms are those 

of the prior oral agreement including the rate 

or amount of commission to be paid[.]
21 A-1967-15T2

[N.J.S.A. 25:1-16(d)(1).] 

"[S]trict compliance with the statute of frauds is essential 

for a broker to recover a commission for the sale of real estate." 

C&J Colonial Realty v. Poughkeepsie Sav. Bank, 355 N.J. Super.

444, 473 (App. Div. 2002), certif. denied, 176 N.J. 73 (2003). 

Our courts disapprove of business practices where brokers rely on 

the "hope" that a commission "'will be voluntarily paid even though 

there is no legal obligation to do so,' and their wish 'to avoid 

the possibility of the refusal of an owner to sign at the outset 

a document of authority the full import of which the latter may 

not be sure.'" Coldwell Banker Commercial/Feist & Feist Realty 

Corp. v. Blancke P.W. LLC, 368 N.J. Super. 382, 392 (App. Div. 

2004) (quoting McCann v. Biss, 65 N.J. 301, 308 (1974)). 

The statute of frauds may be satisfied when the property, 

seller, broker, and price is identified, even if the exact amount 

of the commission is not listed as long as the "proposal which 

states a net price to the owner or that the purchaser is to pay 

the broker's commission is uniformly held to comply with the 

statute." Stanchak v. Cliffside Park Lodge, L.O. of M., Inc., 116 

N.J. Super. 471, 477-78 (App. Div. 1971). In order to satisfy the 

statute of frauds, the writing must signify or "fairly" imply the 

broker is selling the property on behalf of the owner. Id. at

478.
22 A-1967-15T2

Here, no written broker's commission agreement was in effect 

between any of the parties. The separate commission agreement 

drafted by Levin specifically stated until it was mutually signed,

it "shall have no force and effect." Only Pollack signed the 

separate commission agreement; Levin never signed it. 

Accordingly, while defendant may stand in the shoes of Levin by 

adopting all of the terms in the contract of sale, the separate 

commission agreement was not part of it. 

While defendant was informed that the prospective purchaser 

would pay a commission, there was never a suggestion that defendant 

owed plaintiffs for the broker's commission. Contrary to 

plaintiffs' claims, defendant did not refuse to comply with the 

contract. Defendant attempted to obtain the information about the 

broker's commissions but was told it would not apply. The

property, seller, and price were identified in the contract, but 

the broker and the broker's commission was not; therefore, 

plaintiffs did not strictly comply with N.J.S.A. 25:1-16. See C&J 

Colonial Realty, supra, 355 N.J. Super. at 473; Stanchak, supra,

116 N.J. Super. at 477-78.

There was no signed written agreement between plaintiffs and 

defendant, which required defendant to pay 1.5% of the purchase 

price in commission to plaintiffs. Therefore, the trial judge did 

not err in finding "[a]bsent a signed writing memorializing an 
23 A-1967-15T2

agreement between [defendant] and [plaintiff] Pollack, he may not 

require [defendant] to comply with a contract it did not intend 

to become a party to." 

We also reject plaintiffs' assertion that the oral agreement 

between themselves and Levin for 1.5% of the purchase price,

confirmed via email to defendant, binds defendant. Defendant was 

never a party to the oral agreement between Levin and plaintiffs. 

Additionally, when plaintiffs became aware defendant exercised its 

right of first refusal, plaintiffs did not serve notice upon 

defendant of the terms of the oral agreement. See N.J.S.A. 25:1-

16(d)(1). No agreement complied with N.J.S.A. 25:1-16(b) or 

N.J.S.A. 25:1-16(d)(1).

E.

Plaintiffs' quantum meruit argument that defendant was

unjustly enriched is also devoid of merit. In order to recover 

under a theory of quantum meruit, plaintiffs must establish: "(1) 

the performance of services in good faith, (2) the acceptance of 

the services by the person to whom they are rendered, (3) an 

expectation of compensation therefor, and (4) the reasonable value 

of the services." Starkey v. Estate of Nicolaysen, 172 N.J. 60, 

68 (2002).

Plaintiffs argue Pollack performed extensive brokerage 

services in good faith, procured Levin as the purchaser of Butler 
24 A-1967-15T2

Plaza, Levin accepted the services, plaintiffs expected to be 

paid, and Levin agreed to pay Pollack 1.5% of the sale price, 

which was the reasonable value of the services provided. 

However, plaintiffs, did not perform services for defendant's

benefit. The benefit received by defendant, the ability to 

exercise the right of first refusal, was obtained through 

defendant's own negotiations in 1994, and paid for through a higher 

rent. Plaintiffs had no involvement in the 1994 lease agreement

and cannot now argue Pollack bestowed a benefit, by his procurement 

of Levin as a potential purchaser of Butler Plaza, which unjustly 

enriched defendant. 

II.

In its cross-appeal, defendant argues the trial judge erred 

in finding plaintiffs did not violate the CFA, and should have 

awarded it attorney's fees. Because plaintiffs did not make any 

knowing misrepresentations that induced defendant to purchase 

Butler Plaza, the trial judge correctly found defendant's CFA 

counterclaim was without merit.

The CFA was enacted in order to address "fraudulent practices 

in the marketplace and deter such conduct by merchants." 

Thiedemann v. Mercedes-Benz USA, 183 N.J. 234, 245 (2005). The 

CFA protects the public, even if the merchant has acted in good 

faith. Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 533 
25 A-1967-15T2

(App. Div. 1996). Specifically, it was designed "to protect the 

public from sharp practices and dealings in the marketing of 

merchandise and real estate which could victimize the public by 

luring the consumer into a purchase through fraudulent, deceptive, 

or similar kinds of selling or advertising practices." Ibid.

(citations omitted). 

The CFA provides a cause of action to 

[a]ny person who suffers an ascertainable loss 

of moneys or property, real or personal, as a 

result of the use or employment by another 

person of any method, act, or practice 

declared unlawful under this act[,] . . . may 

bring an action . . . in any court of competent 

jurisdiction. 

[N.J. Citizen Action v. Schering-Plough Corp., 

367 N.J. Super. 8, 12 (App. Div.), certif. 

denied, 178 N.J. 249 (2003) (citing N.J.S.A.

56:8-19).]

To establish a claim under the CFA, plaintiffs must prove: (1) 

unlawful conduct by defendant; (2) an ascertainable loss on the 

part of plaintiffs; and (3) a causal relationship between 

defendant's unlawful conduct and plaintiffs' ascertainable loss. 

Id. at 12-13. 

The CFA sets forth three general categories of unlawful 

conduct: affirmative acts; knowing omissions; and regulatory 

violations. Thiedemann, supra, 183 N.J. at 245. While "[a] 

practice can be unlawful even if no person was in fact misled or 
26 A-1967-15T2

deceived," the determination will turn on whether there was "[t]he 

capacity to mislead." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 

(1994). 

Defendant argues plaintiffs violated the Real Estate Brokers 

and Salesman Act (the Act), N.J.S.A. 45:15-1 to -42. The Act was 

designed to "protect consumers by excluding undesirable, 

unscrupulous and dishonest persons . . . from the real estate 

business." Sammarone v. Bovino, 395 N.J. Super. 132, 138 (App. 

Div.), certif. denied, 193 N.J. 275 (2007). N.J.S.A. 45:15-1 

requires a real estate broker to be licensed and N.J.S.A. 45:15-

3.1 states that a licensed real estate broker may pay a referral 

fee or commission to a person not licensed in New Jersey, as long 

as that person is a licensed real estate broker in another 

jurisdiction. 

Defendant contends plaintiffs violated the Act because 

Pollack initially agreed to split the broker's commission with 

Levi, satisfying the first element of a CFA claim. Levi was not 

a licensed broker in any jurisdiction, and was not authorized to 

receive a real estate broker's commission. However, when Pollack 

learned that Levi did not have a real estate license, he and Levin 

informed Levi they could not split the commission with him.

Accordingly, plaintiffs did not violate N.J.S.A. 45:15-3.1. 

Additionally, neither plaintiffs nor Levi contacted defendant 
27 A-1967-15T2

until well after defendant exercised its right of first refusal. 

Consequently, the record demonstrates there were no material 

misrepresentations which could have induced defendant into 

purchasing Butler Plaza. 

Defendant also argues plaintiffs' attempt to collect a 

commission from defendant violated the statute of frauds and

attempting to collect a commission without an agreement was an 

"unconscionable commercial practice" in violation of the CFA. 

Asserting there was an "ascertainable loss," defendant argues it 

paid an additional $2,946 in closing costs for counsel to review 

plaintiffs' commission claims. Here, defendant has not 

established unlawful conduct by plaintiffs. Plaintiffs did not 

induce defendant to exercise its right of first refusal by a 

misrepresentation or knowing omission, especially since defendant 

was unware of plaintiffs' involvement as brokers, and Levi's 

uncompensated initial role. Therefore, defendant has not 

established a claim under the CFA, and the trial judge correctly 

dismissed defendant's counterclaim. 

Affirmed.