                        NOT FOR PUBLICATION WITHOUT THE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.



                                       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 August 3, 2017

              Before Judges Sabatino, Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No. L-
              3111-12.

              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).
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.

                                     2                             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.

                                      3                               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




                                         4                                   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.

                                5                           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

                                 6                           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[.]"



                                        7                                   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-nine-

year 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.



                                        8                             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).

                                      9                            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

                                10                           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.

                                  11                                 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-nine-

year 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

                                      12                                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.




                                        13                                      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.,

                                     14                                 A-5469-14T3
142 N.J. 520, 540 (1995).              "In applying that standard, a court

properly grants summary judgement when the evidence is so one-

sided 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

                                           15                                   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 ninety-

nine-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

                                 16                            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

                                  17                            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.


                                     18                                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 ninety-

nine 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 ninety-

nine-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

                                      19                                    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

                                 20                                 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-nine-

year 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

                                       21                                 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-million-
          dollar 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

                                     22                                 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,


                                  23                               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 cross-

motions 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

                                  24                                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

                               25                           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.

                                 26                          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.'"

                               27                          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



                                28                          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


                                29                            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,


                                  30                             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

                                 31                           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 ten-

year 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)

                                   32                           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.



                                  33                         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.



                                  34                          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



                                  35                            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.




                                  36                             A-5469-14T3
