                                 NOT FOR PUBLICATION WITHOUT THE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-2650-17T3

THE KISLAK CO. INC.,

          Plaintiff-Appellant,

v.

PROMINENT PROPERTIES, LLC,
MYRA PROPERTIES, LLC, LEON
PIRAK, and 627 SEVENTEENTH
AVENUE, LLC,

          Defendants,

and

B&M ESTATES LIMITED LIABILITY
COMPANY, BRENDAN CONHEENEY,
and MICHAEL CHERVENAK,

     Defendants-Respondents.
_______________________________

                   Submitted January 7, 2019 – Decided April 3, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-3038-14.
            W. L. Miller, attorney for appellant.

            C. Finnegan & Associates Law Firm, LLC, attorneys
            for respondents B&M Estates, LLC, Brendan
            Conheeney, and Michael Chervenak (Christine
            Finnegan, on the brief).

PER CURIAM

      After this bench trial, judgment was entered in favor of plaintiff The

Kislak Co., Inc. entitling it to a two percent cooperating realtor's commission on

the sale of a forty-two unit apartment building (the property) by defendant Myra

Properties, LLC to defendant B&M Estates, Limited Liability Company, for

over $4 million. The trial court found defendant Prominent Properties, LLC, a

real estate broker, Myra Properties and Leon Pirak were liable for the unpaid

commission, but that B&M Estates and its owners, defendants Brendan

Conheeney and Michael Chervenak were not liable. Kislak appeals, claiming

the court erred in finding that B&M Estates, Conheeney and Chervenak, were

not liable for the unpaid commission. Because we conclude the court did not

identify its factual and legal findings as to B&M, we remand for it to do so.

      We summarize the real estate transaction based upon the trial record. In

January 2013, Myra Properties, through its principal Pirak, entered into a written

listing agreement with Prominent Properties to sell its property located in the

Borough of Lake Como, with a four percent commission of the selling price.

                                                                          A-2650-17T3
                                        2
The agreement provided that in the event another realtor found a buyer, the

commission would be split evenly with Prominent Properties.

      Having interest in the property, business partners Conheeney and

Chervenak used Kislak to obtain information and negotiate the purchase of the

property.   Myra Properties was aware that Kislak was acting on behalf of

Conheeney and Chervenak.      And Kislak was mindful of the split realtors'

commission listing agreement Myra Properties had with Prominent Properties ,

and expected a two percent commission in the event its clients bought the

property.

      After extensive negotiations, Conheeney and Chervenak were not willing

to offer more than $4.3 million to buy the property, which was $75,000 short of

the $4.375 million price demanded by Myra Properties to sell. Considering that

a four percent realtor's commission on $4.3 million equaling $172,000 would

reduce the sales proceeds to $4.128 million, Myra Properties rejected the offer

because it wanted to net at least $4.2 million after the realtors' commission.

Interestingly, the $75,000 difference was close to the $87,500 commission that

Kislak would earn as its half-share of the commission, if the property was sold

for $4.375 million.




                                                                       A-2650-17T3
                                      3
      After being advised that Myra Properties was not willing to sell the

property for $4.3 million, Conheeney sent an email to Kislak advising that its

services were no longer needed regarding the property because he and

Chervenak were not interested in buying the property, and had turned their focus

towards buying a property in Bayonne. That however was not the case.

      Three days later, Prominent Properties received a letter from Peter Cresci,

Esq., representing 627 Seventeenth Avenue, LLC, advising that its principals,

Conheeney and Chervenak, directed him to offer $4.3 million – the same price

they had offered to Myra Properties through Kislak, which was rejected – to

purchase the property.      The letter further indicated, "[b]uyer(s) have no

[r]ealtor" and the "[r]eal [e]state [c]omission to be paid by the [s]eller per their

agreement . . . ." Prominent Properties confirmed receipt of the offer and that

the buyer had no realtor. The contract of sale reflected that the buyer, 627

Seventeenth Avenue, LLC, had no real estate agent, and a commission of

$100,000 would be paid to Prominent Properties at the closing. Thus, there was

no mention in the contract that Kislak would receive any commission.

      About three months later, the buyer's obligations under the contract were

assigned to B&M Estates, which, as noted, was owned by Conheeney and




                                                                            A-2650-17T3
                                         4
Chervenak. When the sale of the property closed, the only commission paid was

the $100,000 to Prominent Properties, as reflected in the contract of sale.

      In response, Kislak sued Prominent Properties, Myra Properties, 627

Seventeenth Avenue, B&M Estates, Conheeney and Chervenak claiming it was

deprived of a two percent commission on the property's sale price that it earned

from presenting Conheeney and Chervenak, the actual buyers, through 627

Seventeenth Avenue.

      Following a two-day bench trial and post-trial briefs, the judge entered an

order of judgment and statement of reasons dated November 21, 2016, 1 in favor

of Kislak for $86,000 – two percent of the $4.3 million sale price – against

Prominent Properties, Myra Properties, jointly and severally. Claims against

B&M Estates, Conheeney, Chervenak and Pirak were dismissed.                When,

however, it was discovered that the order and statement of reasons were not

served on the parties, a superseding order entering judgment nunc pro tunc and

a statement of reasons were issued on January 5, 2018, reiterating the prior order

and statement of reasons. In his one-page statement of reasons, the judge

explained that Kislak performed in accordance with a valid and binding "co-



1
   The record supplied on appeal does not include a copy of the order or the
statement of reasons.
                                                                          A-2650-17T3
                                        5
brokerage agreement" between Myra Properties and Prominent Properties,

which entitled it to "$86,000 or two [percent] of the [$4.3 million] purchase

price, as its commission."

      Because the statement of reasons made no mention of why B&M Estates,

Conheeney and Chervenak were dismissed, Kislak's counsel wrote a letter and

sent a follow-up email to the judge seeking further explanation. Counsel asked

whether there was "a statement of reasons and conclusions of law as to the

dismissal of claims as to" those defendants, or if "any findings of fact and

conclusions of law" were placed "on the record other than as set forth in the

written statement of reasons" already provided. In his email reply, the judge

stated:

            I did not place anything else on the record. I thought
            my findings were adequate and the reason for
            dismissing the claims against B&M and [Conheeney
            and Chervenak] was that there was no conduct on their
            part upon which a theory of liability could be found or
            reasonably inferred. [2]

      In a single point brief, Kislak appeals arguing:


2
  While we appreciate the efficiency of emails, we suggest that within the letter
and spirit of our Rules of Court as they now exist, it is preferable that direct
written communication between counsel and the trial judge be through formal
written correspondence.



                                                                         A-2650-17T3
                                        6
              THE COURT ERRED IN DISMISSING THE
              COMPLAINT AS TO THE BUYER[S] –
              DEFENDANTS. UNDER HARRIS V. PERL[3] AND
              ITS PROGENY[,] DEFENDANT PROMINENT
              [PROPERTIES] [IS] LIABLE TO PLAINTIFF FOR
              INTERFERING WITH ITS CONTRACTUAL
              RIGHTS AND PLAINTIFF[']S PROSPECTIVE
              ECONOMIC ADVANTAGE.

Despite mentioning Prominent Properties – who was found liable with Myra

Properties and is not a party to the appeal – in its point heading, Kislak's brief

focuses entirely on why B&M Estates, Conheeney and Chervenak should be

liable allegedly because they, in concert with the other defendants, intentionally

deprived it of a two percent commission on the property's sale. We, however,

are unable to determine the merits of this appeal because the trial judge did not

set forth adequate findings of fact and conclusions of law for dismissing the

claims against B&M Estates, Conheeney and Chervenak.

        Our ability to resolve an appeal is largely dependent upon the trial court's

compliance with its obligation to state its findings of fact and conclusions of law

as required by Rule 1:7-4. To comply, the court must articulate factual findings

and correlate them with the principles of law. Curtis v. Finneran, 83 N.J. 563,

570 (1980). We are mindful of the well-established principle that a trial judge's



3
    41 N.J. 55 (1964).
                                                                            A-2650-17T3
                                          7
findings of fact after a bench trial are entitled to deference on appeal so long as

they are supported by sufficient credible evidence in the record. Rova Farms

Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Thus,

given that the assessment of Conheeney and Chervenak conduct is the focus of

Kislak's appeal, it is essential that we have the benefit of the judge's factual

findings as to the role they may have played in Kislak's failure to receive a

commission.     Accordingly, we are not in a position to exercise original

jurisdiction under Rule 2:10-5. Since our review is impeded, a remand is

necessary. Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div. 2015).

      On remand, the parties shall forward their respective appellate briefs to

the judge to give him the benefit of the factual and legal arguments presented to

this court. We take no position on the merits of those arguments, and we leave

it to the judge's discretion to allow the parties to submit additional briefs and

have argument, should they desire.

      Reversed and remanded to the trial court for specific factual findings and

conclusions of law as to the finding of no cause of action against B&M Estates,

Conheeney and Chervenak, as required by Rule 1:7-4. The trial court is free to

reconsider its findings and conclusions based upon the additional advocacy




                                                                           A-2650-17T3
                                        8
presented. We do not retain jurisdiction. Any party aggrieved by the outcome

of the remand may file a timely new appeal.




                                                                     A-2650-17T3
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