SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0481-18T2

GEBROE-HAMMER ASSOCIATES,

Plaintiff-Respondent,

v.

WEST GREEN GABLES, 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 Wittmann 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NOT FOR PUBLICATION WITHOUT THE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 case and its use in other cases is limited. R. 1:36-3.
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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 sought a commission for procuring a buyer for the 

property owned by defendant West Green Gables, LLC (defendant or LLC). 

Defendant appeals from the entry of two summary 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, Jeffrey2and his wife, Susan, each 

held a fifty percent interest in the LLC. The certificate of formation listed

Jeffrey as the registered agent. Section 5.1 of the LLC's operating agreement 

provided 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 Agreement and any [p]erson who subsequently is admitted as a 

 

2 We use the Wittmann's first names for ease of the reader.
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member of the [LLC]." The operating agreement was not affected by the 

Wittmann's divorce in 2013; Jeffrey and Susan remained the sole members.

Susan died in 2015 and her estate 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. 

Plaintiff is a commercial real estate brokerage firm. In July 2016, Adam 

Zweibel, plaintiff'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. Although Zweibel and Jeffrey differ in their 

accounts of this, and the two subsequent conversations between them, the men 

ultimately signed a document entitled "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 in an individual capacity, acknowledging 

in the document that he was "the owner [] or authorized [a]gent [] of [the] owner"

of the property. There was no reference to the LLC.
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The listing agreement, originally dated August 2, 2016, was amended with 

handwritten notations on August 8, 2016. Jeffrey's initials appear on the 

document in multiple places. 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 sale

agreement within two weeks after Jeffrey accepted the LOI. Greenstacks also 

provided 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 contract was not 

forthcoming, Zweibel inquired of Jeffrey and his attorney as to its status. Jeffrey 

and his counsel eventually advised Zweibel that Jeffrey did not intend to proceed 

with the sale. Jeffrey stated he told Zweibel that he had to confer with 

Stefanicha, 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.
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Zweibel subsequently informed Greenstacks that Jeffrey would not 

proceed with the sale. Nevertheless, Greenstacks continued to inquire about the 

property's availability for many months after these events.

Plaintiff instituted suit, asserting it was entitled to its commission under 

the LOI for procuring a buyer 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 execute the listing agreement on behalf of 

defendant. He therefore denied defendants' motions. In his ruling, Judge Lynott 

noted the explicit definitions of "member" and "interest holder" in the operating 

agreement. Because a member was only a person who either signed the 

agreement or who was subsequently admitted as a member, and only Jeffrey and 

Susan had signed the agreement, the judge determined they were the only two 

members.

However, Susan's death triggered an involuntary withdrawal of a member 

under Section 6.3.1. The operating agreement provided that a successor of a

withdrawn member became an interest holder, not a member. Therefore, Judge 

Lynott found that, upon Susan's death, Jeffrey became the sole member of the 
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LLC. Moreover, Jeffrey acted in that capacity by continuing to manage the LLC 

after Susan's death. Without any other members, only Jeffrey was authorized 

under the operating agreement to act on behalf of the LLC. Therefore, as the

sole member, the judge concluded that Jeffrey was authorized to act on behalf 

of the LLC and execute the listing agreement.

In addressing plaintiff's motion for partial summary judgment, Judge 

Lynott concluded plaintiff had not met its burden to establish Greenstacks "was 

a ready, willing and able purchaser" of the property. Therefore, he denied the 

motion without prejudice.

In a second summary judgment application, plaintiff provided 

certifications from Zweibel and Elliot Treitel, a mortgage broker. Judge Lynott 

noted that a Greenstacks's representative sent a "bank register" to Zweibel on 

August 5, 2016, showing a bank account balance of $8.9 million. Zweibel 

contacted Treitel, a vice president at Meridian Capital Group, LLC, on August 

8, 2016 to procure mortgage financing for Greenstacks 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 years] of experience at 

Meridian, that there was a high likelihood of

Greenstacks obtaining a mortgage for 75% of the 

purchase price, at prevailing market rates, through 
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Meridian[,] had Meridian processed the application on 

behalf of Greenstacks. 

Based on the above information, Judge Lynott determined plaintiff had 

demonstrated its procurement 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 interest in the 

transaction and that the broker followed up on the 

prospective purchaser's behalf as to the preparation of 

a definitive contract.

Therefore, plaintiff was entitled to a $250,000 commission and the entry of 

partial summary judgment.3

We review 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.
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On appeal, defendant does not assert a genuine issue as to any of the 

material facts; therefore, the facts are uncontroverted. Instead, defendant 

contends that the judge erred in concluding Jeffrey was authorized to sign the 

listing agreement and LOI, 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 

opinions. We add the following brief comments.

Section VI of the operating agreement prohibited members from 

transferring their membership interest. However, a member had the right to 

surrender his or her interest and voluntarily withdraw from 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 interest [h]older but shall not become a [m]ember." 

When Susan died in 2015, her estate became an interest holder, but not a 

member under the operating agreement. Therefore, in 2017, at the time of these 

events, Jeffrey was the LLC's only member. Only Jeffrey could manage the 

LLC, and take any actions on its behalf. Jeffrey demonstrated this awareness in 

continuing to run the business and in executing the listing agreement and LOI. 
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He further acted as defendant's authorized agent in forwarding the LOI to his 

attorney and requesting the drafting of a purchase sale contract.

We are unpersuaded by defendant's argument that plaintiff was not 

entitled to a commission. Plaintiff presented an executed LOI, and produced 

financial information from the proposed buyer and evidence that the buyer could 

procure the required financing. Plaintiff's proffered evidence was not 

challenged. 

As we have previously stated:

[W]here the broker has procured a purchaser willing 

and able to buy on the seller's terms as stated to the 

broker, and there 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 

mind . . . 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, after 

executing the listing agreement and LOI on behalf of defendant, cannot eradicate 

defendant's obligation under the agreement.

Affirmed.