SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 0481

- 18T2
GEBROE

- HAMMER ASSOCIATES,
Plaintiff

- Respondent,

v. WEST GREEN G ABLES, LLC,
Defendant

- Appellant,
and
JEFFREY WITTMANN , 1
Defendant.

Submitted July 9, 2019

– Decided July 30, 2019 Before Judges Hoffman and Currier. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L

- 6496

- 16. Nemergut & Duff, attorneys for appellant (Paul J. Nemergut, III, of counsel and on the briefs; Jeffrey Zajac, on the briefs).

1 Defendant Jeffrey Wittman n was dismissed under a consent order in July 2018. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 ca se and its use in other cases is limited. R. 1:36

- 3.2 A

- 0481

- 18T2 Brach Eichler, LLC, attorneys for respondent (David J. Klein, of counsel and on the brief).
PER CURIAM
In this matter arising out of a commercial real estate transaction , plaintiff
Gebroe

- Hammer Associates s ought a commission for procuring a buyer for the
proper ty owned by d efendant West Green Gables, LLC (defendant or LLC)

. Defendant appeals from the entry of two summar y judgment orders in favor of plaintiff. After a review of the contentions in light of the record and applicable principles of law, we affirm. Defendant owns property consisting of twenty

- one apartment

- type
townhouses. Under an operating agreement, Jeffr ey 2 and his wife, Susan , e ach
held a fifty percent i nterest in the LLC

. The certificate of formation listed Jeffrey as the registered agent. Section 5.1 of the LLC's operating agreement
pro v i ded that "[t]he [LLC] shall be managed by the [m] embers

. . . . Members owning more than fifty percent (50%) of the [p] ercentages then held by all [ m ] embers shall have the right to act for and bind the [LLC] in the ordinary
course of its business." The agreement defined a "member" as "each [p] erson signing this Agreem ent and any [p] erson who subsequently is admitted as a

2 We use the Wittmann's first name s for ease of the reader.3 A

- 0481

- 18T2

m e m ber of t he [LLC] ." The operating agreement was not affected by the
Wittman n ' s divorce in 2013 ; Jeffrey and Susan remained the sole members.
Susan died in 2015 and her e state passed to the Wittmann' s daughters. Under the operating agreement, the daughters became interest holders, not
members. Susan's brother, John Stefanicha, was the executor of her estate.
P laintiff is a commercial real es tate brokerage firm. In July 2016, Adam Zweibel, plaintif

f's vice

- president, came to Jeffrey's office inquiring about Jeffrey's interest in selling the property. Zweibel was aware that the LLC owned
the property

. However, in their conversations, Zweibel stated Jeffrey advised
that he was the LLC's owner. Alth ough Zweibel and Jeffrey differ in their
accounts of this , and the two subsequent conversations between them, the men ultimately signed a document entit l ed " AGREEMENT FOR EXCLUSIVE
RIGHT TO SELL OR EXCHANGE " (listing agreement)

. The listing agreement gave plaintiff the exclusive right to list and sell the property, setting a $5.2 million purchase price and a $250,000 commission to plaintiff upon it "procuring a purchaser." Zweibel signed the listing agreement on behalf of plaintiff

. Jeffrey signed i n an individual ca pacity , acknowledg ing
in the document that he was " the owner [] or authorized [ a ] gent [] of [ the ] owner "
of the property. Th ere was no reference to the LLC

.4 A

- 0481

- 18T2

The listing agreement, original l y dated A ugust 2, 2016 , was amended with
handwritten notati o ns on A ugust 8, 2016. Je f frey's initials appear on the
document in multiple pla c es. Jeffrey testified during depositions that he had an attorney review the listing agreement prior to signing it. On August 8, Greenstacks LLC proffered a letter of intent (LOI) , meeting the purchase price and deposit terms in the listing agreement. The LOI was not binding on the parties , but was subject to the execution of a purchase sal e agreement within two weeks after Jeffrey accept ed the LOI. Greenstacks also
p rovided Zweibel with proof of available funds , which Zweibel forwarded to a mortgage broker to obtain financing. Jeffrey signed the LOI the following day , and instructed Zweibel to forward it to Jeffrey's attorney to prepare a contract

. When a contra ct w as not forthcoming, Zweibel inquired of Jeffrey and his attorney as to its status. Jeffrey
and his counsel eventually advised Zweib e l that Jeffrey did not intend to proceed
with the sale. Jeffrey stated he told Zweibel that he had to confer with
Stefanic ha , as Susan's executor , about the transaction. When Jeffrey eventually contacted Stefanicha several weeks later, Jeffrey said Stefanicha was not
interested in getting involved in the sale.5 A

- 0481

- 18T2

Zweibel subsequently informed Greenstacks that Jeffrey w ould not proceed with the sale. Nevertheless, Greenstacks continued to inquire about the property's availability for many months a fter these events.
Plaintiff instituted suit , asserting it was entitled to its commission under
the LOI for procuring a b uyer for the property

. After discovery, defendant and Jeffrey filed summary judgment motions. Plaintiff opposed the motions and moved for partial summary judgment.
In a May 16, 2018 comprehensive oral decision, Judge Keith E. Lynott
found Jeffrey had authority to exe cute the listing agreement on behalf of
defendant. He therefore denied defendants' motions. In his ruling, Judge Lynott noted the explicit definitions of "member " and "inter e st holder" in the o perating agreement. Because a member wa s only a person who e ither s igned the agreement or who was subsequently admitted as a m ember, and only Jeffrey and
Su s an had signed the agreem en t, the judge determined they were the only two
members. However, Susan' s death trig g e red an involuntary withdrawal of a member
under Section 6.3. 1. Th e operating agreement provided that a successor of a withdrawn memb e r bec a me an inter e st holder , not a member. Ther e fore, Judge Lynott found that, upon Susan's death, Jeffrey became the sole member of the6 A

- 0481

- 18T2

LLC

. Moreover, Jeffrey acted in that capacity by continuing to manage the LLC
after Susan's death

. Without any other members, o nly Jeffrey was authorized under the operating agreement to act on behalf of the LLC

. Therefore, as the
sole mem b er, the judge concluded that Jeffrey was auth orized to act on behalf
of the LLC and execute the listing agr ee m ent. In addressing plaintiff's motion for partial summary judgment , Judge Lynott concluded plaintiff had not met its burden to establish Greenstacks " was a ready, wil l ing and able purchaser " of the proper t y. Therefore, he denied the motion without prejudice. In a second summary judgment application, plaintiff provided certifications from Zweibel and Elliot Treitel, a mor tgage broker. Judge Lynott
noted that a Greenstack s ' s representativ e sent a "bank register" to Z w eibe l on
A ugust 5, 2016 , showing a bank account bal a nce of $8.9 million. Zweibel
contacted Treitel , a vice president at Merid i a n Capital Group, LLC , o n August
8 , 2016 to procure mortgage financing for Greenstack s to purchase the property. Treitel acknowledged receiving the information and certified that he

believed at the time, and continue[s] to believe, based on [his] nearly [ twenty year s ] of experience at Meri d ian , th at there was a hi gh likelihood of Greenstacks obtaining a mortgage for 75% of the purchase price, at prevailing market rates, through7 A

- 0481

- 18T2 Meridian [,] had Meridian processed the application on behalf of Greenstacks. Based on the above information, Judge Lynott determined plaintiff had
demonstrated it s procure ment of a ready, willing and able prospective purchaser.
He stated:
The facts establish that Greenstacks entered a [LOI] ,

commenced and pursued financing, had sufficient assets to obtain such financing and to complete the purchase and exhibited continuing int erest i n the trans a c ti o n and that the b roker followed u p on the prospecti v e purchaser's behalf as to the prepar a ti o n of a definitive contract.
Ther e fore , plaintiff was entitled to a $250,000 commission and the entry of partial summary judgment. 3
We revie w a summary judgment order de novo, applying the same standard used by the trial court. Davis v. Brickman Landscaping, Ltd. , 219 N.J. 395, 405 (2014) (citations omitted) . We must determine whether, viewing the facts in the light most favorable to the non

- moving party, the moving party has demonstrated there are no genuine disputes as to any material facts and they are entitled to judgment as a matter of law. R. 4:46

- 2(c); Davis , 219 N.J. at 406;
Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 ( 1995).

3 The only issue remaining was whether plaintiff was entitled to attorney's fees under the listing agreement as a prevailing party.8 A

- 0481

- 18T2

On appeal, defendant does not assert a genuine issue as to any of the
material facts; therefore, the facts are uncontroverted. Instead, d efendant
contends that the judge erred in concluding Jeffrey was authorized to sign the listing agreement and L OI , and in finding plaintiff was entitled to a commission. After reviewing the record, we are satisfied that Judge Lynott's legal
conclusions , as supported by the uncontroverted facts, are unassailable. We , therefore , affirm substantially for the reasons expressed in his well

- reasoned opinion s . We add the following brief comments.
Section VI of the operating agreement prohi bited members from transferring their membership interest

. However, a member had the right to

su r ren d er his or her inter e st and volu ntarily withdra w f rom the LLC. The agreement also contemplated an involuntary withdrawal such as a member's
death. In that case, "the successor of the withdrawn [m] ember shall thereupon
become an i nterest [h] older but shall not become a [m] ember."
When Susan died in 2015, her e state became an interest holder , but not a member under the operating agreement. There fore , in 2017, at t h e time of these

events , Jeffrey w a s the LLC's only member

. Only Jeffrey could manage the LLC, and take any actions on its b ehalf. Jeffrey demonstrated this aw a reness in continuing to run the business and in executing the listing agreement and LOI.9 A

- 0481

- 18T2

He further acted as defendant's authorized agent in forwarding the LOI to his attorney and request ing the drafting of a purc h a s e sale contract. We are unpersuaded by defendant's argument that plaintiff was not
entitled to a commission. Plain t iff presented an executed LOI, and produced financial information from the prop o sed buyer a n d evidence that the buyer could procure the requir ed financing. Plaintiff's proffered evidence was not challenged.
As w e have previously stated : [ W ] here the broker has procured a purchaser willing and able to b uy on the seller's terms as stated to the broker, and th e re is a failure of the principals to enter into a formal contract of sale by reason of the seller's fault, as, e.g. , where he ha [ s ] subsequently changed his m i n d

. . . the seller is liable to the broker. [ Stanchak v. Cliffside Park Lodge, L.O. of M., Inc. , 116 N.J. Super. 471 , 480 (App. Div. 1971)

. ] Without any evidence to the contrary, plaintiff established it had procured a ready , willing , and able buyer for the purchase. Jeffrey's change of heart, a fter executing the listing agreement and LOI on behalf of defendant, cannot eradicate
defendant's obligation under the agreement.
Affirmed.