Flagstaff Realty, Inc. v. Ned

544 A.2d 385, 226 N.J. Super. 294, 1987 N.J. Super. LEXIS 1464
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 28, 1987
StatusPublished
Cited by1 cases

This text of 544 A.2d 385 (Flagstaff Realty, Inc. v. Ned) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flagstaff Realty, Inc. v. Ned, 544 A.2d 385, 226 N.J. Super. 294, 1987 N.J. Super. LEXIS 1464 (N.J. Ct. App. 1987).

Opinion

The opinion of the court was delivered by

BAIME, J.A.D.

Plaintiff Flagstaff Realty, Inc. instituted this action in the Superior Court, Law Division, Special Civil Part, to recover a [295]*295real estate brokerage commission. Named as defendants were Cora Ned, her two sons, Myron Ned and Marty Ned, and her daughter, Mayra Brown. The gist of plaintiffs complaint was that, acting as a licensed real estate broker, it had produced a buyer ready, willing and able to purchase property owned by defendants as tenants in common, that defendants and the buyer had entered into a binding contract and that defendants had wrongfully repudiated the agreement. Following a trial, the judge issued a written opinion in which he concluded that defendants had wrongfully refused to consummate the transaction and were thereby responsible for plaintiff’s loss of its commission. Judgment was entered accordingly.1 We are constrained to reverse.

The salient facts can be briefly stated. Cora Ned, a 55 year-old widow, purchased her Jersey City home some 25 years ago. Following the death of her husband, Cora at some point decided to place the names of her three children on the deed to the property. While the property was thereafter held as tenants in common, Cora retained both the decision-making authority concerning the house and the responsibility for payment of all of the bills.

Cora has a long history of mental illness. She has been diagnosed as a paranoid schizophrenic who suffers from delusions of persecution, hallucinations and suicidal thoughts. Because of the severity of her condition, Cora has been hospitalized for extensive periods on numerous occasions. When not hospitalized, Cora undergoes monitoring and treatment by the Mount Carmel Guild. The treatment consists generally of [296]*296psychotherapy and the administration of large quantities of psychotropic drugs. While the outward manifestations of the disease can be controlled and ameliorated to some extent, the underlying thought disorder is essentially incurable.

In the fall of 1985, Cora suddenly decided to sell her house, apparently because of the anxiety she felt about paying her bills, especially her mortgage. Cora placed the house on the market under a non-exclusive listing agreement with another broker. The record reflects that she gave only one day of thought before deciding to list the house, that she did not discuss the sale of the property with her children and that she never considered where she would reside thereafter.

In any event, a representative of plaintiff subsequently produced a buyer who entered into a contract of sale with Cora and her three children. The contract provided that plaintiff was to earn a 3.75% commission “due and payable upon closing of the title.” Both parties had attorneys review the contract and none of the sellers expressed any reservations concerning the sale.

On the day before she signed the contract, Cora visited her psychiatrist, Dr. Julio Aria, at the Mount Carmel Guild. At trial, Dr. Aria testified that Cora did not apprise him of the fact that she intended to sell her house. He noted that during the visit Cora was extremely unstable and was suffering from hallucinations and the effect of chronic insomnia. According to Dr. Arla, “[s]he was afraid of the voices [she was hearing] and had suicidal thoughts.”

After signing the contract, Cora’s condition deteriorated substantially. The record reflects that she was unable to eat or bathe and was virtually bed-ridden during this period. Accompanied by her daughter, Cora visited Dr. Aria at his office on January 16,1986. Dr. Aria testified that Cora appeared “greatly agitated,” that “she couldn't stand still in [his] office" and that she was “psychotic and incoherent.” He attributed her deteriorating condition to the proposed sale of her house. Although the record is not entirely clear, it would appear that Cora was eventually hospitalized.

[297]*297Cora’s attorney was contacted immediately following her visit with Dr. Aria. He ultimately was able to negotiate a release from the buyer in exchange for $2,198. Plaintiff insisted on payment of its commission, however, and brought this action when defendants refused.

In his written opinion, the trial judge concluded that Cora’s “conduct was wrongful in that she breached the sales contract for no reason other than that she experienced a change of mind.” The judge determined that, despite “credible testimony” concerning Cora’s condition of paranoid schizophrenia, the cause of her repudiation of the agreement “was not necessitated by or attributable to her mental condition.” In that regard, the judge placed great emphasis upon the testimony of plaintiff’s representative, who witnessed the signing of the contract, that on that date Cora “acted in a normal manner and understood the nature of the circumstances and her role” in the transaction. The judge reasoned that Cora’s subsequent breach of the contract was predicated upon her understanding “that the amount that would be realized by the sale would not be as substantial as she had anticipated” and that “she would have a difficult time finding another place in which to live.”

We are thoroughly convinced from our careful reading of the record that the trial judge erred both in his application of the controlling legal principles and in his factual determinations. The seminal decision concerning the triadic relationship between the seller, buyer and real estate broker is Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528 (1967). There, our Supreme Court abrogated the century-old rule that when a broker who has been duly authorized by the owner to find a buyer for his property produces a willing and able purchaser who enters into a contract to buy on terms agreeable to the owner, the broker has fulfilled his undertaking and his right to commission from the owner is complete. Id. at 543. The Court noted that “ordinarily when an owner of property lists it with a broker for sale, his expectation is that the money for the payment of commission will come out of the proceeds of the sale.” Id. at [298]*298547. So posited, the Court determined that “a more realistic approach to the problem [was] necessary.” Ibid. The Court thus adopted the following rule:

When a broker is engaged by an owner of property to find a purchaser for it, the broker earns his commission when (a) he produces a purchaser ready, willing and able to buy on the terms fixed by the owner, (b) the purchaser enters into a binding contract with the owner to do so, and (c) the purchaser completes the transaction by closing the title in accordance with the provisions of the contract. If the contract is not consummated because of lack of financial ability of the buyer to perform or because of any other default of his, ... there is no right to commission against the seller. On the other hand, if the failure of completion of the contract results from the wrongful act or interference of the seller, the broker’s claim is valid and must be paid. [Id. at 551.]

The Ellsworth Dobbs decision was followed by Rothman Realty Corp. v. Bereck, 73 N.J. 590 (1977). There, the Court confronted the question whether a broker could recover its commission against a buyer who had defaulted on his contract with the seller because of an unanticipated financial calamity which rendered him unable to consummate the transaction.

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Bluebook (online)
544 A.2d 385, 226 N.J. Super. 294, 1987 N.J. Super. LEXIS 1464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flagstaff-realty-inc-v-ned-njsuperctappdiv-1987.