SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5469-14T3

MARKEIM-CHALMERS, INC.,

Plaintiff-Respondent/

Cross-Appellant,

v.

WILLINGBORO URBAN RENEWAL, LLC;

D&D COLLEGE PROPERTIES, LLC;

CAMPUS PROPERTIES, LLC, 

HANKINS PROPERTIES, LLC; STEVEN 

HANKINS; STRAYER UNIVERSITY, INC.;

and RENEWAL WILLINGBORO, LLC,

Defendants-Appellants/

Cross-Respondents.

______________________________________

Argued April 24, 2017 – Decided

Before Judges Sabatino, Currier and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Docket No. L3111-12.

Peter N. Milligan argued the cause for 

appellants/cross-respondents.

Bruce S. Luckman argued the cause for 

respondent/cross-appellant (Sherman, 

Silverstein, Kohl, Rose & Podolsky, P.A., 

attorneys; Mr. Luckman, of counsel and on the 

briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

August 3, 2017
2 A-5469-14T3

PER CURIAM

At issue in this matter is the entitlement to a real estate 

broker's commission for the lease and sublease of a commercial 

building in the Township of Willingboro. On cross-motions for 

summary judgment, the judge granted plaintiff Markeim-Chalmers, 

Inc. ("MCI") partial summary judgment, awarding MCI a $100,000 

commission arising from the ninety-nine-year lease of the 

property. The judge also granted defendants, Renewal Willingboro 

LLC, Inc. ("Renewal Willingboro"), Willingboro Urban Renewal, LLC 

("Urban Renewal"), D&D College Properties, LLC ("D&D"), Campus 

Properties, LLC ("Campus Properties"), Hankins Properties, LLC

("Hankins Properties"), Steven Hankins ("Hankins"), and Strayer 

University, Inc. ("Strayer") partial summary judgment dismissing 

MCI's claim for a commission on the ten-year sublease of the 

property to Strayer. For the reasons that follow, we affirm in 

part and reverse and remand in part.

I.

We glean the following facts from the motion record. 

Defendant Renewal Willingboro and its wholly owned subsidiary 

Urban Renewal developed the Willingboro Town Center in Willingboro 

Township. One of their main tenants was Burlington County College, 

which rented the 20,992 square foot commercial property located 

at 300 Campbell Street (the "property") owned by Urban Renewal. 
3 A-5469-14T3

In 2011, the college announced its intention not to renew its 

lease, which would leave the office building vacant after September 

2012. Urban Renewal's lender required it to find a new tenant for 

the building. As a result, Urban Renewal hired several real estate 

brokers, including MCI, to secure a new tenant or buyer for the 

property. Over the course of the next two years, Urban Renewal 

and MCI entered into several short-term agreements where MCI would 

list the property in the hopes of finding either a purchaser or 

tenant and, if it did, receive a broker's commission.1

In one broker agreement, the "open listing agreement,"

Renewal Willingboro agreed to pay MCI a five percent commission 

if a "sale or exchange" of the property occurred before a specified 

date between Urban Renewal2 and a prospective buyer that had been 

"registered" by MCI with Urban Renewal. The agreement required 

 

1 On September 15, 2010, MCI and Urban Renewal entered into an 

"Exclusive Right to Lease Listing Agreement," which by its terms 

expired on October 15, 2010. The agreement was extended by the 

parties and subsequently terminated by mutual consent before a 

tenant was found. On July 25, 2011, MCI and Urban Renewal signed 

an exclusive "right to sell" agreement, which would expire on 

October 15, 2011. The agreement expired without a buyer being 

found or any prospective purchasers being registered by MCI.

2 Throughout the documentation in this case, Renewal Willingboro 

and Urban Renewal are frequently referred to interchangeably. 

Robert B. Stang and Charles Hack were the managing members of both 

entities. As one entity wholly owns the other and both are 

controlled by the same people, the distinction does not 

substantively affect our analysis.
4 A-5469-14T3

MCI to inform Urban Renewal of prospective buyers in order to 

receive a five-percent commission "in the event of a sale of 

property." The agreement also stated: "if owner accepts an offer 

to sell or exchange within 6 months to anyone to whom [MCI] has 

registered in writing with Owner said commission shall be due and 

payable as contained herein." (Emphasis added). The agreement 

was not exclusive, and Urban Renewal could have authorized other 

brokers to market the property. 

MCI and Urban Renewal also separately entered into a "lease 

commission agreement," in which Urban Renewal agreed to pay MCI a 

five-percent commission if the property was leased to a 

"registered" third party by a specified date. The "registered" 

parties identified by MCI under the open listing agreement included 

Steven Hankins and two related companies that he owned, Hankins 

Properties and Campus Properties.

On December 4, 2011, MCI entered into a "Confidentiality & 

Client Registration Agreement" with Strayer as a potential buyer 

and provided it with confidential information about the property. 

In emails later that week to Strayer's broker, Cushman and 
5 A-5469-14T3

Wakefield of Pennsylvania, Inc. ("C&W"), MCI shared information 

about the property's current tenant and potential sales prices.3

On February 2, 2012, MCI sent Stang and Urban Renewal a letter 

of intent ("LOI") from Hankins and Campus Properties detailing a 

proposal to buy the college building for $2 million. The LOI 

noted that MCI (representing Urban Renewal) and C&W (representing 

Hankins) were the brokers on the deal. The LOI expired on February 

7, 2012.

Over the next few days, MCI facilitated discussions between 

Urban Renewal and the Campus Properties entities, and secured

permission from Hankins to keep the LOI open "a couple of days" 

past the February 7, 2012 deadline. That back-and-forth continued 

for a few weeks. 

On February 23, 2012, MCI – responding to an email not in the 

appellate record – emailed Stang and Urban Renewal, writing: 

Glad to see that things seem to be 

progressing. Please try to copy me on all 

correspondence with Steve Hankins on this 

matter as we discussed so I can stay in the 

loop. I know you prefer to negotiate with 

Steve directly, but I am here to assist 

however you would like.

 

3 During oral argument before the trial court, MCI's counsel 

admitted there was no listing agreement at that point in the 

chronology between MCI and Urban Renewal. He also admitted that 

MCI did not register Strayer under the lease commission agreement.
6 A-5469-14T3

For reasons not clear in the appellate record, Stang rejected 

Campus Properties' offer to purchase the property for $2 million. 

Hankins then became involved in Strayer's interest in the property 

on behalf of Urban Renewal. He certified later, "After a failed 

attempt to purchase the real estate, I began to form a professional 

and business relationship with the owner." Although Urban Renewal 

admits that MCI introduced Hankins to it, it also independently 

inquired "about hiring Hankins who would earn a developer's fee 

for such work." Urban Renewal further admits to hiring Campus 

Properties as a developer for the property.

Hankins wrote that he previously had a long-term relationship 

with Strayer – who already was leasing office space in the property 

from Burlington County College – and Hankins "abandoned my efforts 

to purchase the premises, and started assisting in putting an 

agreement together wherein Strayer University, Inc. would lease 

the premises in question."

As MCI's listing agreement with Strayer was expiring, C&W 

also signed a broker agreement with Urban Renewal to market the 

property. On May 10, 2012, Stang sent C&W a commission agreement 

for the property, and C&W registered Strayer with Urban Renewal 

as a potential tenant. The agreement notes that no other broker 

was involved with this property aside from MCI. The agreement 

established a sliding scale commission for C&W of six percent of 
7 A-5469-14T3

the lease price in year one to three percent of the lease price 

in year three. The agreement estimated that Strayer would pay 

$2.9 million in rent over ten years, with C&W receiving a 

commission of approximately $137,000.

Strayer expressed interest in renting the property. 

According to defendants, after the lease commission agreement with 

MCI expired, Strayer indicated it would only sign a lease with 

Urban Renewal if Hankins had an ownership interest in the property. 

Instead of a direct sale or lease, Urban Renewal entered into a 

different transaction in order to facilitate the lease of the 

property to Strayer and to manage Strayer's rental. 

What occurred is that in June 2012, Urban Renewal and Campus 

Properties formed a new entity, D&D, a limited liability company, 

with two members – Renewal Willingboro and Campus Properties, with 

Renewal Willingboro owning ninety percent and Campus Properties 

owning the remaining ten percent. The D&D operating agreement 

noted that Campus Properties would make $96,173 in capital 

contributions to D&D. Renewal Willingboro contributed $867,557, 

which represented the "estimated cost of the Strayer Build Out." 

Additionally, Renewal Willingboro contributed $2 million in 

capital, "which the parties agree is the value of the ground lease 

of the property being contributed[.]"
8 A-5469-14T3

D&D was formed to allow Renewal Willingboro to lease the 

property to D&D, and for "[Steven] Hankins to oversee construction 

of leasehold improvements under the Strayer Lease and the 

construction of additional leasehold improvements for the 5,091 

rentable square feet in the property."

On June 6, 2012, Urban Renewal entered into a ninety-nineyear lease of the property with D&D for the nominal rent of $1.00 

per year in consideration. Stang, as managing member for both 

entities, signed both the landlord and tenant portions of the 

lease. In turn, on June 12, 2012, D&D entered into a ten-year 

sublease of the property with Strayer, commencing October 1, 2012.

The sublease specified a sliding scale for rent payments, with 

Strayer paying $13,249.17 a month initially and up to $35,216.58 

a month in year ten.

The sublease recognized Urban Renewal as the property owner 

and Renewal Willingboro as redevelopment manager. Although 

Strayer previously discussed leasing the entire building, it only 

leased 15,899 square feet in the building. The ten-year sublease 

with Strayer was entered into after both the open listing and 

lease commission agreements had expired. MCI never received a 

commission for the sublease. C&W received a $137,000 commission 

as broker for the Strayer sublease.
9 A-5469-14T3

C&W, which is not a party to this litigation, served as the 

broker for the ten-year sublease from D&D to Strayer, and performed 

the services work as broker on that transaction. The estimated 

value of the rental payments under the ten-year sublease to Strayer 

was $2.9 million.

Following the lease, Flushing Bank agreed to modify Urban 

Renewal's mortgage on the property on August 31, 2012. D&D agreed 

to assume the mortgage, which then had a balance of nearly $3.9 

million. Stang and Hack personally guaranteed it.

Plaintiff filed its complaint in July 2012. The complaint, 

as later amended, asserted breach of contract against Urban Renewal 

(count one); unjust enrichment against all defendants (count two); 

quantum meruit against all defendants (count three); tortious 

interference with contract against all defendants (count four); 

breach of the implied covenant of good faith and fair dealing 

against all defendants (count five); civil conspiracy against all 

defendants (count six); and aiding and abetting against D&D, Campus 

Properties, Hankins Properties, Strayer, and Renewal Willingboro 

(count seven).

Defendants did not assert the affirmative defense of statute 

of frauds in their answer. See R. 4:5-4 (prescribing that 

affirmative defenses such as the statute of frauds are to be set 

forth specifically and separately). 
10 A-5469-14T3

In October 2013, while the litigation was pending, Campus 

Properties transferred its membership interest in D&D to Renewal 

Willingboro for $40,000, leaving Renewal Willingboro as the sole

remaining member and owner of D&D.

The parties filed cross-motions for summary judgment. MCI 

argued that it was entitled to a commission under the open listing 

agreement for the "transfer/exchange" of the property pursuant to 

the ninety-nine-year lease of the property to D&D. Relying 

principally on Renaissance Plaza Assocs. v. Atlantic City, 18 N.J. 

Tax 342 (Tax 1998), and an unpublished appellate opinion, MCI 

contended that the formation of a joint venture and the signing 

of a ninety-nine-year lease triggered the right to a commission. 

MCI further argued that, by previously registering Strayer with 

Urban Renewal, defendants owed it a commission for the subsequent 

ten-year lease signed by Strayer. MCI alternatively argued it was 

entitled to damages in quantum meruit under Weichert Co. Realtors 

v. Ryan, 128 N.J. 427 (1992), despite defendant's claim that it 

failed to comply with the statute of frauds.

Defendants argued that MCI only had a contractual right to a 

commission for the sale of the property, which did not occur, and 

therefore was not entitled to a commission for the sublease to 

Strayer. Defendants further argued that the relationship between 

D&D and Urban Renewal was not a joint venture, and even if it 
11 A-5469-14T3

were, MCI had no agreement for a commission on a joint venture, 

unlike the broker in R.J. Brunelli & Co., supra. Defendants also 

argued that MCI's reliance on Weichert Co. Realtors, supra, was 

misplaced because the statute of frauds was amended by the 

Legislature after that Supreme Court case was decided. 

After considering the matter without any evidentiary hearing, 

the trial court granted MCI partial summary judgment, finding that 

MCI was entitled to a commission under the open listing agreement 

for the ninety-nine-year lease to D&D but not for the lease to 

Strayer under the lease commission agreement. The trial court

ordered all of the defendants jointly and severally liable to MCI 

for the sum of $100,000 in damages. 

The trial court first found that MCI was not entitled to a 

commission under the lease commission agreement for the ten-year 

sublease to Strayer, stating:

With respect to this matter, I do not believe 

there is any entitlement to any commission on 

the lease. There -- it was an argument made 

that it should bootstrap back to an agreement 

that was before July 25, 2011, the listing 

agreement, because that spoke about leases. I 

cannot find anything that says that there is 

any entitlement for [MCI], in any respect, 

with -- no matter how broadly I read any of 

the documents within the law, that it would 

entitle them to any type of commission on a 

lease. Whatever was paid to Cushman & 

Wakefield was paid to Cushman & Wakefield. It 

is of no consequence. I do not see MCI as 

having a right to a commission on the lease.
12 A-5469-14T3

The court therefore granted partial summary judgment to 

defendants, dismissing MCI's claim for damages for the ten-year 

sublease to Strayer.

The court reached a different result with respect to MCI's 

claim for a commission on the ninety-nine-year lease to D&D. After 

analyzing the open listing agreement, MCI's registration of 

Strayer and the Hankins entities, and the January 4 letter from 

MCI to Urban Renewal registering Hankins, Hankins Properties and 

Campus Properties under the open listing agreement, the court 

concluded that defendants had improperly tried to circumvent 

paying a commission to MCI. The court ruled that the ninety-nineyear lease from Urban Renewal to D&D was effectively a sale or 

exchange of the property for value, which triggered the right to 

a commission under the open listing agreement. The court further 

elaborated:

It's obvious to the Court that the entities--

the defendant entities had an obligation to 

[MCI] to pay commission on a sale or exchange, 

and that they proceeded to undertake a 

transaction that would otherwise potentially 

not be considered to trigger a commission to 

be due, and they did not accomplish that in 

the eyes of this Court. The transaction, as 

evidenced by the operating agreement, was a 

method that they attempted to utilize to avoid 

the document looking like a sale or 

hypothecation of rights, or what have you, but 

that's, in fact, what it did. They gave up 

their right to utilize the property, and it 
13 A-5469-14T3

was fairly blatant to the [c]ourt what they 

were attempting to do. They were attempting 

to cut out [MCI] from this agreement. For 

whatever reason, it doesn't matter.

With regard to the amount of the commission to be awarded, 

the court stated: "I derived the value from the operating 

agreement, from the capitalization in the operating agreement." 

The court calculated the commission to be five percent of the $2 

million estimated value of the leased property, as listed in the 

operating agreement, or $100,000. 

Based on those findings, the court granted partial summary 

judgment to MCI against all defendants for $100,000, with liability 

imposed against them jointly, severally, and in the alternative. 

Defendants now appeal the trial court's order requiring them 

to pay a real estate commission to MCI for the ninety-nine-year 

lease. On appeal, defendants raise the following arguments: (1) 

there was no exchange of the property entitling MCI to a 

commission; (2) there was no hypothecation of rights to the 

property entitling MCI to a commission; (3) MCI had no right to a 

commission for a lease of the property; and (4) defendants Strayer, 

Campus Properties, Hankins Properties, and Hankins in particular 

cannot be liable for any commission under the open listing 

agreement between MCI and Urban Renewal. 
14 A-5469-14T3

MCI cross-appealed the trial court's order denying its claim 

for compensation for its efforts in connection with the ten-year 

sublease of the property to Strayer. On appeal, MCI raises the 

following arguments: (1) MCI is entitled to additional 

compensation in the amount of $137,000 in connection with the 

Strayer lease transaction; (2) MCI is entitled to recover 

commissions, notwithstanding the statute of frauds; and (3) there 

is no express contract which bars MCI's quantum meruit claims. 

II.

We review the trial court's rulings under well-known 

standards. Our review of a ruling on summary judgment is de novo. 

"[W]e apply the same standard governing the trial court–we view 

the evidence in the light most favorable to the non-moving party." 

Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). "If 

a review of the record reveals that 'there is no genuine issue as 

to any material fact challenged and that the moving party is 

entitled to a judgment or order as a matter of law,' then a court 

should grant summary judgment." Nicholas v. Mynster, 213 N.J.

463, 478 (2013) (quoting R. 4:46-2(c)). We thus consider "whether 

the competent evidential materials presented, when viewed in a 

light most favorable to the non-moving party, are sufficient to 

permit a factfinder to resolve the alleged disputed issue in favor 

of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 
15 A-5469-14T3

142 N.J. 520, 540 (1995). "In applying that standard, a court 

properly grants summary judgement when the evidence is so onesided that one party must prevail as a matter of law." Davis v. 

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citation 

omitted). Because the trial court granted partial summary judgment 

to each party, we must consider the facts in a light most favorable 

to the respective non-moving party or parties. 

Further, in construing the meaning of a statute or the common 

law, "our review is de novo." Nicholas, supra, 213 N.J. at 478. 

"A trial court's interpretation of the law and the legal 

consequences that flow from established facts are not entitled to 

any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 

N.J. 366, 378 (1995). Moreover, because the construction of 

contract terms is likewise a question of law, see Boss v. 

Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 

2001), we independently review the trial court's construction on 

a de novo basis. See Morgan v. Sanford Brown Inst., 225 N.J. 289, 

302-03 (2016). For instance, whether a contract term is clear or 

ambiguous is a question of law. Nester v. O'Donnell, 301 N.J. 

Super. 198, 210 (App. Div. 1997). A term is ambiguous if it is 

"susceptible to at least two reasonable alternative 

interpretations." Ibid. (citation omitted). "If contract terms 

are unspecific or vague, extrinsic evidence may be used to shed 
16 A-5469-14T3

light on the mutual understanding of the parties." Hall v. Bd. 

of Educ. of Jefferson, 125 N.J. 299, 305 (1991); see also Conway 

v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 270 (2006) ("Extrinsic 

evidence may be used to uncover the true meaning of contractual 

terms."). 

III.

We first address whether MCI is entitled to a commission 

under the open listing agreement for the ninety-nine-year lease 

to D&D. In order to qualify for a commission under the open 

listing agreement, the lease must constitute a "sale or exchange" 

of the property.

Ninety-nine-year leases are permitted in New Jersey. See

Brunswick v. Route 18 Shopping Ctr., 182 N.J. 210 (2005). Some 

states still limit leases to ninety-nine years. See, e.g., Nev. 

Rev. Stat. § 111.200(2) (1963); Code of Ala. § 35-4-6 (1989). New 

Jersey has no such statutory limit, but it appears that the 

practice of parties entering into ninety-nine-year leases has 

persisted. 

In City of Atlantic City v. Cynwyd Investments, 148 N.J. 55 

(1997), the Court addressed the circumstances in which ninetynine-year lessees may be treated as fee simple owners:

In some circumstances, New Jersey courts have 

held that ninety-nine-year lessees are 

equivalent to fee simple owners under the common 
17 A-5469-14T3

law. Lake End Corp. v. Twp. of Rockaway, 185 N.J. 

Super. 248, 256 (App. Div. 1982) ("[a]s a matter 

of law and fact, ninety-nine-year leaseholds are 

the equivalent of a fee ownership for the 

purposes of real property taxation, valuation 

and assessment.") See Ric-Cic Co. v. Bassinder, 

252 N.J. Super. 334 (App. Div. 1991) (granting 

standing to ninety-nine-year perpetual lessee to 

apply for variances under N.J.S.A. 40:55D-3 to -

4). However, in West Jersey Grove Camp 

Association v. City of Vineland, 80 N.J. Super.

361 (App. Div. 1963), the court declined to 

afford property tax exemptions to holders of 

ninety-nine-year leases that were not renewable. 

Whether a ninety-nine-year lessee should be 

considered a de facto fee simple owner for 

condemnation purposes constitutes an issue of 

first impression. In general, the rights of the 

holder of a ninety-nine-year lease depend on the 

contract and the legislative intent underlying 

the applicable statutory regime. Although 

ninety-nine-year lessees are deemed to be 

equivalent to fee simple owners for certain 

purposes under the law, we decline to apply the 

doctrine to condemnation.

[Id. at 72.]

In Cynwyd Investments, the Court held that the 99-year lessee did 

not have pre-condemnation rights, but may participate in the 

eventual condemnation trial and present noncumulative evidence of 

fair value. Id. at 73.

As another illustration, in Ocean Grove Camp Meeting v. 

Reeves, 79 N.J.L. 334 (Sup. Ct.), aff'd 80 N.J.L. 464 (E. & A. 

1910), property was leased for ninety-nine years, "renewable" by 

the lessee, "his heirs and assigns for a like term of years 

forever." Id. at 335. The court deemed the rent reserved to be
18 A-5469-14T3

"grossly disproportionate to the value of the lands," and the 

lessee owned the buildings and improvements. Id. at 336. Under 

these circumstances, the court held that the lessee was liable for 

the assessed real estate taxes. In reaching that conclusion, the 

court engaged in the following analysis:

It is quite plain that an instrument demising 

to one and his heirs and assigns a long term 

of years in land, renewable in perpetuity, 

conveys an ownership equivalent to a fee 

simple, although rent may be thereby reserved. 

It is very closely analogous to . . . a 

conveyance in fee simple, reserving to the 

grantor and his heirs a small ground rent. 

The entire beneficial ownership of the land 

resides as much in the lessee, in a case like 

the present, as in the grantee under such a 

deed reserving ground rent. 

[Id. at 338-39.] 

"As a matter of law and fact, 99-year leaseholds are the 

equivalent of a fee ownership for the purposes of property 

taxation, valuation and assessment." Lake End Corp., supra, 185 

N.J. Super. at 256. Consequently, individual leaseholds may be 

assessed for tax purposes as individual parcels of real property. 

Id. at 257. As a result, a tenant under a 99-year lease subject 

to renewal in perpetuity with an option to purchase after twenty 

years is treated as a property owner, since the lease is considered 

tantamount to a transfer in ownership for local property tax 

purposes. Renaissance Plaza Assocs., supra, 18 N.J. Tax at 347.
19 A-5469-14T3

A tenancy for life, or for ninety-nine years or more,

qualifies the tenant to receive a tax rebate under the Homestead 

Rebate Act, N.J.S.A. 54:4-3.80. Macmillan v. Taxation Div. Dir., 

180 N.J. Super. 175, 179 (App. Div. 1981). However, leases are 

generally not taxable exchanges under the Internal Revenue Code. 

See 26 U.S.C.A. § 1031. Moreover, a tenant's interest in a 

leasehold is mortgageable as a matter of general law. 29 New 

Jersey Practice, Law of Mortgages § 5.2, at 263 (Myron C. 

Weinstein) (2d ed. 2001).

Unlike these precedents that arose in the context of taxation, 

zoning, and condemnation matters, there is no legislative regime 

involved in this action, which concerns the enforcement of a 

contractual broker's commission between private parties. Even so, 

related principles apply.

The lease between Urban Renewal and D&D expires after ninetynine years. Unlike in Ocean Grove, supra, 79 N.J.L. at 339, and 

Ric-Cic Co., supra, 252 N.J. Super. at 341-42, where the ninetynine-year leases extended into perpetuity, no such open-ended 

language appears here. The lease also does not contain a lessee 

renewal option, as in Lake End Corp., supra, 185 N.J. Super. at 

255-56, or an option to purchase, as in Renaissance Plaza Assocs., 

supra, 18 N.J. Tax at 346-47. Notwithstanding these factual 

aspects, our case law has at times equated a ninety-nine-year 
20 A-5469-14T3

lease with fee simple ownership rights, unless that designation 

would be against the public interest. See Cynwyd Investments, 

supra, 148 N.J. at 72-73 (condemnation proceedings). Equating 

this particular leasehold interest with a fee simple estate for 

purposes of considering a broker's right to a commission is not 

manifestly against the public interest. 

Here, the facts militate strongly in favor of considering the 

lease an "exchange" under the open listing agreement. In addition 

to the extreme duration of the lease, the ground lease constituted

the majority of Renewal Willingboro's capital contribution to the 

formation of D&D. D&D would have had no reason to exist, but for 

the lease. MCI introduced Urban Renewal to Hankins and Campus 

Properties. Campus Properties held a ten percent ownership 

interest in D&D. D&D was responsible for paying the real estate 

taxes on the property. D&D immediately subleased the property to 

Strayer. 

Considering the totality of the circumstances, including the 

nature of the transactions and the relationship of the parties, 

the ninety-nine-year lease effectively should be treated in this 

particular context like a sale or an exchange. Accordingly, we 

hold that the ninety-nine-year lease between Urban Renewal and D&D 

constituted a "sale or exchange" within the meaning of the open 

listing agreement, thereby entitling MCI to a commission. To rule
21 A-5469-14T3

otherwise would unjustly allow Renewal Willingboro to evade 

responsibility for a commission on the transaction, which appears 

to have largely resulted from MCI's efforts as broker. We thus 

affirm the trial court's finding of MCI's entitlement to a 

commission on the lease to D&D.

IV.

We next address which parties are liable to MCI for the 

commission under the open listing agreement on the ninety-nineyear lease to D&D. The trial court held all defendants jointly 

and severally liable to MCI. Defendants argue that the trial 

court erred in holding Strayer, Hankins, Hankins Properties, and 

Campus Properties jointly and severally liable for the commission. 

We agree.

The only parties to the open listing agreement were Urban 

Renewal and MCI. Strayer, Hankins, Hankins Properties, and Campus

Properties were not parties to the agreement, did not sign the 

agreement, and did not guarantee its performance. Accordingly, 

Strayer, Hankins, Hankins Properties, and Campus Properties did 

not violate any contractual obligations and were not contractually 

liable for any commission due under the agreement. Moreover, in 

its amended complaint, MCI only alleged breach of contract against 

Urban Renewal. Therefore, the only parties liable to MCI for the 

commission on the ninety-nine-year lease are Urban Renewal and 
22 A-5469-14T3

Willingboro Renewal, its parent company. Accordingly, summary 

judgment should have been granted to defendants Strayer, Hankins, 

Hankins Properties, and Campus Properties dismissing MCI's claim 

for a commission on the ninety-nine-year lease.

Defendants further argue that the court erred in awarding a 

commission in the sum of $100,000 to MCI. The court provided the 

following explanation for the amount of damages it awarded to MCI:

In terms of damages, I accept the two-milliondollar figure in the [D&D] operating agreement

as sufficient evidence of an approximation of 

value for what was exchanged, and I apply the 

five percent commission figure to that. It's 

that simple, with respect to my findings.

Defendants argue that this calculation is flawed and lacks 

appropriate support in the record. We agree. 

Article VII, § 7.01 of the operating agreement sets forth the 

respective capital contributions of Urban Renewal and Campus 

Properties to D&D, stating:

Capital Contributions. (a) Simultaneously 

with the execution of this Agreement, [Renewal 

Willingboro] and [Campus Properties] shall 

contribute the cash, property and services set 

forth on Schedule A annexed hereto. [Campus 

Properties'] initial capital contribution 

shall be $96,173.00 representing ten percent 

(10%) of the estimated cost of the Strayer 

Build Out. [Renewal Willingboro] shall 

contribute $2,000,000.00 of capital to the 

Company, which the parties agree is the value 

of the ground lease of the Property being 

contributed by [Renewal Willingboro] to the 

Partnership plus [$]867,557.00 representing 
23 A-5469-14T3

ninety percent (90%) of the estimated cost of 

the Strayer Build Out. 

Accordingly, Renewal Willingboro contributed $2,867,000 to 

D&D, representing the value of the ground lease of the property

($2 million), and ninety percent (90%) of the estimated cost of 

the Strayer build-out ($867,000). Campus Properties contributed 

only $96,173 to D&D, representing the remaining ten percent of the 

estimated cost of the Strayer build-out. Thus, Renewal Willingboro 

contributed 96.75 percent of the total capital contributions to 

D&D, with Campus Properties contributing only the remaining 3.25 

percent. 

The operating agreement for D&D further provided that the 

participation interest of Renewal Willingboro was ninety percent 

and the participation interest of Campus Properties was ten 

percent. Accordingly, if the value of the ground lease was $2 

million, the value of Campus Properties' ownership interest in the 

property would be $200,000, with Renewal Willingboro's interest 

being the remaining $1,800,000. Defendants argue that if we find 

that MCI is entitled to any commission, its commission should be 

five percent of only $200,000, not five percent of $2 million as 

computed by the trial court. 

Notwithstanding the gross disparity in contribution level, 

the ninety percent participation interest of Renewal Willingboro, 
24 A-5469-14T3

and the fact that Willingboro Renewal was still the fee simple 

owner of the property leased to D&D, the trial court awarded a 

five percent commission on the entire $2 million value of the 

property listed in the operating agreement. 

The court reached its decision on damages without conducting 

an evidentiary hearing. The court's decision did not include any 

analysis or consideration of the following pertinent facts: (1)

the grossly disparate contributions of Renewal Willingboro and 

Campus Properties; (2) Renewal Willingboro retaining a fee simple 

ownership of the property leased to D&D; and (3) Renewal 

Willingboro holding a ninety percent participation interest in 

D&D, and thus transferred or exchanged only a small percentage of 

the value of the property. These facts should have been considered 

by the court in calculating the appropriate commission. 

We recognize that no party requested an evidentiary hearing, 

and that the issues were presented to the court through crossmotions for summary judgment. Nonetheless, the damages issues 

require further proceedings on remand, with a plenary hearing to 

develop and determine any disputed material facts. Bruno v. Gale, 

Wentworth & Dillon Realty, 371 N.J. Super. 69, 76-77 (App. Div. 

2004). 

We therefore vacate the damage award of $100,000 and remand 

for the trial court to conduct further proceedings to determine 
25 A-5469-14T3

the appropriate amount of the commission under the open listing 

agreement. 

V.

Finally, we address whether MCI is entitled to a commission 

under the open lease commission agreement or the doctrine of 

quantum meruit for the lease to Strayer. The trial court ruled 

that MCI was not entitled to a commission for the Strayer lease

without specifically commenting on the equitable arguments raised 

by MCI. 

In its cross-appeal, MCI argues that the trial court should 

have awarded it an additional $137,000 commission for the ten-year 

sublease Strayer entered into with D&D for the property. MCI 

concedes that it was not entitled to commission based on the open 

lease agreement with Urban Renewal. Rather, it contends that the 

court should have awarded a commission under either the theory of 

unjust enrichment or quantum meruit. We disagree.

A real estate broker is generally entitled to receive a 

commission "for the transfer of an interest in real estate, 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." N.J.S.A. 25:1-16(b). "Transfer 

or sale" in this section is defined as the "transfer of an interest 
26 A-5469-14T3

in real or the purchase or sale of a business." N.J.S.A. 25:1-

16(a). "Interest in real estate" is deemed to include a lease of 

real estate. N.J.S.A. 25:1-10. 

Further, a broker who works under an oral agreement is 

entitled to a commission only if:

1) 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; and

(2) before the principal serves the broker 

with a written rejection of the oral 

agreement, the broker either effects the 

transfer or sale, or, in good faith, enters 

negotiations with a prospective party who 

later effects the transfer or sale.

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

The Legislature enacted this revised version of the statute 

of frauds in 1995. Under the prior version, N.J.S.A. 25:1-9 

stated:

No broker or real estate agent selling or 

exchanging real estate for or on account of 

the owner shall be entitled to any commission 

for such sale or exchange, unless his 

authority therefor is in writing, signed by 

the owner or his authorized agent, or unless 

such authority is recognized in a writing or 

memorandum, signed by the owner or his 

authorized agent, either before or after such 

sale or exchange has been effected, and, in 

either case, the rate of commission on the 

dollar or the amount of the commission shall 

have been stated therein.
27 A-5469-14T3

Any broker or real estate agent selling or 

exchanging real estate pursuant to an oral 

agreement with the owner of such real estate, 

who shall actually effect such sale or 

exchange before such oral agreement shall have 

been repudiated or terminated by the owner in 

writing as hereinafter provided, may recover 

from such owner the amount of commission on 

such sale or exchange, if the broker or agent 

shall, within five days after the making of 

the oral agreement and prior to the actual 

sale or exchange of such real estate, serve 

upon the owner a notice in writing, setting 

forth the terms of the oral agreement and 

stating the rate or amount of commission to 

be paid thereunder, and if the owner shall not 

have repudiated or terminated the oral 

agreement prior to the actual sale or exchange 

of the real estate.

[N.J.S.A. 25:1-9 (repealed L. 1995, c. 360, § 

9 (eff. Jan. 5, 1996)).]

"Under both the old and new statutes, the broker can recover 

a commission if within five days after the oral agreement, the 

broker sends the owner a notice stating the terms of the agreement 

including the commission amount or rate, and if the owner does not 

repudiate or terminate the agreement prior to the actual sale of 

the property." C&J Colonial Realty, Inc. v. Poughkeepsie Sav. 

Bank, F.S.B., 355 N.J. Super. 444, 472 (App. Div. 2002), certif. 

denied, 176 N.J. 73 (2003).

"N.J.S.A. 25:1-9, commonly referred to as the real estate 

broker's statute of frauds, '. . . represents a strong statement 

of public policy by the Legislature which cannot be ignored.'" 
28 A-5469-14T3

R.A. Intile Realty Co., Inc. v. Raho, 259 N.J. Super. 438, 454 

(Law Div. 1992) (quoting McCann v. Biss, 65 N.J. 301, 309 (1974)). 

Strict 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, supra, 355 N.J. Super. at 473 (citing Tannenbaum 

& Milask, Inc. v. Mazzola, 309 N.J. Super. 88, 95 (App. Div. 

1997)). Without a written agreement, an oral agreement complying 

with the requirements of N.J.S.A. 25:1-16(d) is the only means of 

satisfying the Statute of Frauds. 

MCI does not claim an oral agreement existed. Nor did MCI 

send a notice to Urban Renewal pursuant to N.J.S.A. 25:1-16(d). 

Instead, MCI entered into the written lease commission agreement 

with Urban Renewal on September 15, 2010. The agreement expired 

on February 7, 2011. D&D and Strayer entered into the ten-year 

lease 486 days after the lease commission agreement expired. MCI 

entered into a second lease commission agreement with Urban Renewal 

on July 25, 2011, which expired on October 15, 2011. D&D and 

Strayer entered into the ten-year lease 236 days after the second 

lease commission agreement expired. 

The open listing agreement expired on February 1, 2012, some 

117 days before the lease between D&D and Strayer was entered 

into. Moreover, the ten-year sublease does not constitute a "sale 
29 A-5469-14T3

or exchange" or de facto "conveyance in fee" under the open listing 

agreement. 

"[I]n a leasing, the broker's commission is not earned until 

the critical event, which ordinarily is the date the lease is 

signed." Feist & Feist Realty Corp. v. Dockside Urban Renewal 

Corp., 255 N.J. Super. 100, 104 (Law Div. 1992). Given the 

expiration of both the open listing and lease commission agreements

before the ten-year sublease between D&D and Strayer was entered 

into, MCI is not contractually entitled to a commission for the 

sublease under either agreement. 

We next address whether MCI is entitled to recover the 

reasonable value of its services relating to the Strayer sublease 

on an alternative theory of quantum meruit. Quantum meruit is a 

type of "quasi-contractual recovery for services rendered when a 

party confers a benefit with a reasonable expectation of payment." 

Weichert, supra, 128 N.J. at 437. The doctrine allows the party 

to recoup the reasonable value of services rendered. Id. at 438. 

As we recently explained:

Quantum meruit is a form of quasi-contractual 

recovery and is wholly unlike an express or 

implied-in-fact contract in that it is imposed 

by the law for the purpose of bringing about 

justice without reference to the intention of 

the parties. The equitable remedy is 

applicable only when one party has conferred 

a benefit on another, and the circumstances 
30 A-5469-14T3

are such that to deny recovery would be 

unjust. 

[N.Y.-Conn. Dev. Corp. v. Blinds-To-Go (U.S.) 

Inc., 449 N.J. Super. 542, 556 (App. Div. 

2017) (citations omitted).] 

Under certain circumstances, a real estate broker can recover 

fees for services rendered even in the absence of an express or 

implied contract. As we explained in Weichert,

a broker seeking recovery on a theory of 

quantum meruit must establish that the 

services were performed with an expectation 

that the beneficiary would pay for them, and 

under circumstances that should have put the 

beneficiary on notice that the plaintiff 

expected to be paid . . . Courts have allowed 

brokers to recover in quantum meruit when a 

principal accepts a broker's services but the 

contract proves unenforceable for lack of 

agreement on essential terms—for instance, the 

amount of the broker's commission . . . 

[t]hus, a broker who makes a sufficient 

showing can recover fees for services rendered 

even absent express or implied agreement 

concerning the amount of the fee.

[Weichert, supra, 128 N.J. at 438 (citations 

omitted).] 

However, if an express contract exists, a court cannot grant 

"relief regarding the same subject matter based on quantum meruit." 

Kas Oriental Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 286 (App. 

Div.), certif. denied, 192 N.J. 74 (2007). There, the trial court 

awarded a commission for sales made after the termination of the 

contract on a quantum meruit basis. Id. at 288. We reversed, 
31 A-5469-14T3

holding that awarding a commission after the contract terminated 

was "inconsistent with the terms of [the] express contract" and 

therefore invalid. Ibid.

We recently reaffirmed this principle by holding a jury cannot 

award damages for quantum meruit if an express contract between 

the parties existed. Blinds-To-Go, supra, 449 N.J. Super. at 557. 

It has long been recognized, however, that the 

existence of an express contract excludes the 

awarding of relief regarding the same subject 

matter based on quantum meruit. An implied 

contract cannot exist when there is an express 

contract about the identical subject. The 

parties are bound by their agreement, and 

there is no ground for implying a promise. 

[Id. at 556 (internal quotation marks and 

citations omitted).] 

Because an express contract existed regarding the identical 

subject matter, MCI cannot obtain relief based on quantum meruit. 

Kas Oriental Rugs, supra, 394 N.J. Super. at 286; Blinds-To-Go,

supra, 449 N.J. Super. at 556. For example, in Moser v. Milner 

Hotels, Inc., 6 N.J. 278 (1951), the Court held:

It is well settled that an express contract 

excludes an implied one. An implied contract 

cannot exist when there is an existing express 

contract about the identical subject. The 

parties are bound by their agreement, and 

there is no ground for implying a promise. It 

is only when the parties do not agree that the 

law interposes and raises a promise. When an 

express contract exists, there must be a 

rescission of it before the parties will be 

remitted to the contract which the law 
32 A-5469-14T3

implies, in the absence of the agreement which 

they made for themselves.

[Id. at 280-81 (quoting Voorhees v. Combs, 33 

N.J.L. 494, 496-97 (E. & A. 1869)).]

See also Shalita v. Twp. of Washington, 270 N.J. Super. 84, 90-91 

(App. Div. 1994) ("generally, the parties are bound by their 

agreement and there is no ground for an additional obligation 

where there is a valid unrescinded contract that governs their 

rights"). "The law continues to prohibit the enforcement of an 

implied contract or an implied provision that conflicts or is 

inconsistent with the parties' express contract, as we held in 

Moser." Kas Oriental Rugs, supra, 394 N.J. Super. at 287. 

Here, the ten-year sublease to Strayer was entered into after 

the lease commission agreement expired. "Since Moser militates 

against the granting of a remedy based on a quantum meruit theory 

that is inconsistent with the terms of an express contract," MCI 

cannot obtain relief based on quantum meruit. Id. at 288. 

We further note that C&W served as the broker for the tenyear sublease from D&D to Strayer. It is undisputed that C&W

performed the services as broker on that transaction. 

"'Ordinarily, a broker who has been the effective cause of a 

transaction is entitled to the agreed commission[.]'" George H. 

Beckman, Inc. v. Charles Reid & Sons, Inc., 44 N.J. Super. 159, 

170 (App. Div. 1957) (quoting Restatement of Agency § 448(f)
33 A-5469-14T3

(1933)). "[W]here a prospective tenant is produced by the broker 

and a negotiated lease results, the broker is deemed to be the 

efficient procuring cause of the lease, entitled to a commission." 

Feist & Feist Realty Corp., supra, 255 N.J. Super. at 104. Here, 

as the trial court correctly perceived, that did not happen with 

respect to MCI. MCI was not the "effective cause" of the sublease 

to Strayer. For this additional reason, MCI is not entitled to a 

commission under the open lease commission agreement. 

For these reasons, the trial court properly granted summary 

judgment to defendants dismissing MCI's claim for a commission on 

the ten-year sublease to Strayer based on breach of contract or 

quantum meruit. This does not end our analysis, however.

In addition to its claims for breach of contract and quantum 

meruit, MCI's amended complaint also alleged legal theories of 

unjust enrichment, tortious interference with contract, breach of 

the implied covenant of good faith and fair dealing, aiding and 

abetting, and civil conspiracy. The court's oral decision did not 

discuss or analyze these additional claims. It did not set forth 

factual findings and correlate them to legal conclusions as to 

these additional claims. The court did not issue a written opinion 

stating findings of facts and conclusions of law on these discrete 

issues.
34 A-5469-14T3

"[B]oth Rule 1:7-4 and Rule 2:5-1(b), specifically state that 

the court 'shall' set forth the facts and make conclusions of law 

to support the order or judgment." Allstate Ins. Co. v. Fisher, 

408 N.J. Super. 289, 300-01 (App. Div. 2009). These requirements

were not met here as to the discrete open issues. However, we 

note that the trial court's omission may have been understandable 

because the primary focus of the arguments to the motion judge 

instead concerned the key contractual issues. 

Rule 2:10-5 provides that "[t]he appellate court may exercise 

such jurisdiction as is necessary to complete the determination 

of any matter on review." However, our original factfinding 

authority must be exercised sparingly and only in clear cases that 

are free of doubt. Tomaino v. Burman, 364 N.J. Super. 224, 234-

35 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004).

This is not a case where original jurisdiction will result 

in a complete determination of the matter on review. This appeal 

does not address a single, lingering issue. See Allstate, supra,

408 N.J. Super. at 302. There is no indication of a risk of 

perpetual litigation, and it does not appear that the exercise of 

original jurisdiction is necessary to avoid lengthy or burdensome 

litigation. See id. Accordingly, we decline to exercise original 

jurisdiction to determine these remaining open issues.
35 A-5469-14T3

We remand for the trial court to consider MCI's claims of 

unjust enrichment, tortious interference with contract, breach of 

the implied covenant of good faith and fair dealing, aiding and 

abetting, and civil conspiracy. In doing so, we intimate no views 

on their resolution in the first instance.

VI.

In summary, viewing the pleading in a light most favorable 

to the respective nonmoving parties, we agree with the trial court 

that MCI is entitled to recover a commission from Urban Renewal

and Renewal Willingboro under the open listing agreement for the 

ninety-nine-year lease of the property to D&D. We also agree that 

the other defendants are not liable to MCI for a commission for 

that transaction. We vacate the trial court's damages calculation,

however, and remand the matter for the trial court to conduct 

proceedings, with a plenary hearing if fact-finding necessitates 

it, to re-determine the appropriate amount of the commission under 

the open listing agreement. 

We concur with the trial court that MCI is not entitled to a 

commission for the ten-year sublease of the property to Strayer

based on breach of contract or quantum meruit. 

Lastly, we remand the matter for proceedings to determine 

MCI's additional claims of unjust enrichment, tortious 
36 A-5469-14T3

interference with contract, breach of the implied covenant of good 

faith and fair dealing, aiding and abetting, and civil conspiracy.

We direct the trial court to conduct a case management 

conference within thirty days to plan the remand proceedings and 

arrange for any additional briefing. The trial court has the 

discretion to reopen discovery, to the extent that it determines 

any of these unresolved issues warrant doing so. 

We do not retain jurisdiction over the remanded issues. Any 

party aggrieved by the trial court's post-remand rulings may seek 

appellate review through a timely-filed new appeal. 

Affirmed in part, reversed in part, and remanded for 

proceedings consistent with this opinion. We do not retain 

jurisdiction.