                                NOT FOR PUBLICATION WITHOUT THE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-0262-18T3

GEBROE-HAMMER ASSOCIATES,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

DEAL LAKE VILLAGE GARDENS,
LLC,

          Defendant/Third-Party
          Plaintiff-Respondent/
          Cross-Appellant,

v.

406 DEAL LAKE, LLC,

          Third-Party Defendant/Second
          Third-Party Plaintiff,

v.

BRAD SMITH, TODD SMITH and
DEAL LAKE VILLAGE GARDENS,
LLC,

     Second Third-Party Defendants.
___________________________________
            Argued October 2, 2019 – Decided January 28, 2020

            Before Judges Vernoia and Susswein.

            On appeal from the Superior Court of New Jersey, Law
            Division, Essex County, Docket No. L-1437-16.

            David Jay Klein argued the cause for appellant/cross-
            respondent (Brach Eichler, LLC, attorneys; David Jay
            Klein, of counsel and on the briefs).

            David Michael Hutt argued the cause for respondent/
            cross-appellant (Hutt & Shimanowitz, PC, attorneys;
            David Micheal Hutt, on the briefs).

PER CURIAM

      Plaintiff, Gebroe-Hammer Associates, appeals from the trial court's

judgment for defendant, Deal Lake Village Gardens, LLC, dismissing plaintiff's

breach of contract action. Plaintiff and defendant entered into an exclusive

listing agreement pursuant to which plaintiff agreed to broker the sale of an

apartment complex located at 406 Deal Lake Drive in Asbury Park, New Jersey

(the property). Plaintiff brought suit claiming that it is entitled to a com mission

under the agreement. Plaintiff contends that although the property was sold after

the exclusive listing agreement expired, it had introduced the eventual purchaser

to the property, which, plaintiff argues, is sufficient to earn the commission

under the agreement. Defendant disputes that plaintiff did enough by way of



                                                                            A-0262-18T3
                                         2
"introducing" the property and also contends that the person with whom plaintiff

communicated about the property was not the ultimate purchaser.

      With the parties' agreement, the Law Division judge convened a bench

trial based on the discovery record. After reviewing the documentary evidence,

the judge found that plaintiff had introduced the property to a person who was

an "undisclosed principal" of the newly formed corporation that purchased the

property. The trial court determined that was not sufficient to entitle plaintiff to

a commission. The court applied the "efficient procuring cause" doctrine to

impose additional prerequisites for earning a commission. Because plaintiff

failed to satisfy those additional conditions, the trial court entered judgment for

defendant.

      We have considered the parties' arguments in light of the record and

applicable legal standards. We conclude that the trial court should not have

relied on the efficient procuring cause doctrine because the contract explicitly

set forth when and in what circumstances plaintiff would be entitled to a

commission. In doing so, the court imposed on plaintiff different preconditions

to receiving a commission than those agreed to by the parties. The court, in

other words, effectively rewrote the contract agreed to by sophisticated parties

familiar with commercial real estate transactions. We hold that the trial court


                                                                            A-0262-18T3
                                         3
erred in superimposing the additional requirements of the efficient procuring

cause doctrine.

      We therefore reverse the judgment and remand for the trial court to

determine whether plaintiff is entitled to a commission under the specific terms

of the agreement as written. In making that fact-sensitive determination, the

trial court must determine whether the property was sold to or on behalf of the

person who was introduced to the property by plaintiff. That determination, in

turn, requires the court on remand to ascertain the intended meaning of the

portion of the agreement that specifies when plaintiff earns a commission.

                                       I.

      After discovery, both parties filed motions for summary judgment. The

first judge to hear the case denied those motions and referred the matter to

another judge for trial. The second judge conducted a one-day bench trial on

the papers the parties had submitted to the first judge. The trial judge entered

judgment in defendant's favor and issued an order dismissing plaintiff's

complaint with prejudice. Plaintiff appeals from that judgment. Defendant

contends in a cross-appeal that the trial court misinterpreted and misapplied the

contract when it found that the individual to whom plaintiff had introduced the




                                                                         A-0262-18T3
                                       4
property was an undisclosed principal of the corporation that ultimately

purchased the property.

                                       II.

      On October 13, 2014, plaintiff and defendant entered into an exclusive

listing agreement concerning the property defendant owned. The agreement

provides:

            In consideration for listing and endeavoring to sell or
            exchange [the property], [defendant] or authorized
            Agent of [defendant], grant [plaintiff] the exclusive
            right to sell said property at the price and upon terms
            set forth herein or at any other terms or price the
            undersigned may agree to accept.

            Upon [plaintiff] procuring a purchaser, [defendant]
            agree[s] to pay you a commission of [3.5%] of gross
            sales price.

            [Plaintiff's] commission shall be considered earned if
            the property is sold or exchanged by anyone during this
            exclusive period. If a sale or exchange is consummated
            after the termination of this agreement to or on behalf
            of a party who was introduced to the property by
            [plaintiff], [plaintiff] will also be entitled to the full
            commission.

      The agreement was set to expire on January 20, 2015, and it initially set a

listing price of $7,000,000. The parties entered into a second exclusive listing

agreement that expired on April 1, 2015. The terms of the second agreement



                                                                         A-0262-18T3
                                        5
were identical to the initial agreement except as to purchase price, which was

reduced to $6,250,000.

      At some point in 2014, Adam Zweibel, a salesperson employed by

plaintiff, scheduled a breakfast meeting with Peter Siegel to discuss real estate

in Asbury Park. Siegel was known to participate in the Asbury Park real estate

market.   On October 14, 2014, Zweibel sent a follow-up email to Siegel

concerning the property.      Zweibel's email included a confidential offering

memorandum consisting of a financial summary, description of the property,

and demographic information about the surrounding area. Siegel replied that he

was not interested in the property due to its high asking price.

      Plaintiff failed to locate a buyer for the property before the second

exclusive listing agreement expired on April 1, 2015.           On June 2, 2015,

defendant entered into an exclusive listing agreement with another broker, John

C. Conover Agency (Conover). The agreement between defendant and Conover

had a listing price of $6,250,000 and was to remain in force for a period of six

months.

      On June 11, 2015, Zweibel sent an email to Siegel erroneously suggesting

that plaintiff was still the exclusive listing broker of the property. Siegel reacted

to Zweibel's email by contacting the broker who actually had exclusive listing


                                                                             A-0262-18T3
                                         6
rights at that time, Conover. Siegel informed Conover that plaintiff "w[as] one

of the brokers that brought it to me last year when they had it." Siegel added

that he did "not want to be in the middle of dueling brokers."

      Beginning on June 12, 2015, Siegel made a series of three incremental

offers for the property. Those offers were for a purchase price of $5,000,000,

$5,030,000, and $5,180,000, respectively. Defendant declined all three offers.

Siegel made the first of these ascending offers the day after he received the email

from Zweibel that incorrectly stated that plaintiff was still the exclusive listing

broker.

      On July 9, 2015, another person, Lindsay Ornstein, made an offer for the

property to a sales representative at Conover, Anthony Newarski. Her offer was

for a purchase price of $5,600,000. Defendant accepted this offer. Ornstein

claims to have made the offer after performing her "normal due diligence and

underwriting" and after looking at the "projected income[,] . . . operating

[expenses] of the building[,] . . . [and] capital improvements needed." Ornstein

further stated that "publicly available" information and the information

Newarski provided supported the decision.

      On July 20, 2015, Ornstein and others formed a corporation known as 406,

referring to the mailing address of the property. 406 formally contracted for and


                                                                           A-0262-18T3
                                        7
took title to the property. 406 is comprised of approximately fifteen investors,

including Siegel and Ornstein. Both Ornstein and Siegel own a ten to twenty

percent interest in 406.

      Ornstein claims that at the time she made the offer for the property, she

was unaware that Siegel would become an investor. She attested that it was her

common practice to "tie up" a property with an offer and then subsequently raise

the capital for the purchase through a network of investors.

      She also claimed she had not seen any sales or marketing materials

prepared by plaintiff prior to her offer. However, the record shows that Ornstein

had discussed the property with Siegel, at least to the extent that she was aware

that Siegel had previously submitted unsuccessful bids valued below the

$5,600,000 price she eventually tendered. The record also indicates that Siegel

signed the contract for the sale of the property on behalf of 406.

                                       III.

      We begin our analysis by acknowledging the applicable standard of

review. Our review of a judgment entered in a non-jury case is limited. Seidman

v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). We defer to a trial

court's fact-finding, even where it does not depend on assessing live witnesses'

demeanor. The trial court's factual findings therefore remain entitled to


                                                                         A-0262-18T3
                                        8
deference even though the record before the court in this case consisted solely

of documentary evidence. An appellate court is simply not as experienced nor

as capable as the trial court at making credibility assessments or factual findings.

State v. S.S., 229 N.J. 360, 379–81 (2017). Thus, we should not disturb a trial

court's factual findings made from a documentary record if those findings are

supported by "sufficient credible evidence." Id. at 381 (citing State v. Gamble,

218 N.J. 412, 424 (2014)).

      In contrast, an appellate court reviews questions of law de novo. State v.

Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173

N.J. 502, 549 (2002)). Accordingly, 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. Manalapan Twp. Comm., 140

N.J. 366, 378 (1995). Mixed questions of law and fact are subject to a similar

de novo standard of review. Cumberland Farms, Inc. v. N.J. Dep't Envtl. Prot.,

447 N.J. Super. 423, 438 (App. Div. 2016) (citing In re Malone, 381 N.J. Super

344, 349 (App. Div. 2005)).

      We next consider the principles of contract law that address specifically

when a broker is entitled to a commission. In this instance, the trial court

rejected plaintiff's claim for breach of contract after determining that plaintiff


                                                                            A-0262-18T3
                                         9
was not the "efficient procuring cause" of the sale. The efficient procuring cause

doctrine, sometimes referred to as the efficient "producing" cause doctrine, is a

tool case law developed to ensure equitable results when a contract does not

otherwise expressly specify the conditions precedent to earning a commission.

See First N.H. Corp. v. Van Syckle, 37 N.J. Super. 469, 472 (App. Div. 1955)

(articulating the rule that a broker is the efficient procuring cause of a transaction

if he or she "caused a person to negotiate with defendant and that person

purchased the stock and paid the price without a substantial break in the ensuing

negotiations"). The basic application of the doctrine is

             in the absence of some qualifying or oppugnant
             expression in the contract of employment, a broker who
             is duly engaged earns his commission when he procures
             for the owner a purchaser ready, able, and willing to
             comply with the terms specified in the authority thus
             conferred, or with other or different terms which,
             however, are satisfactory to the owner.

             [George H. Beckmann, Inc. v. (Zinke's) Rainbow's End,
             Inc., 40 N.J. Super. 193, 196 (App. Div. 1956) (citing
             Marschalk v. Weber, 11 N.J. Super 16, 21 (App. Div.
             1950)).]

Accordingly, our courts have applied the doctrine "to permit a broker to recover

a commission upon a sale made [even] after [the] expiration of an exclusive . . .

brokerage contract." Leadership Real Estate, Inc. v. Harper, 271 N.J. Super.

152, 171 (Law Div. 1993).

                                                                              A-0262-18T3
                                        10
      When the doctrine applies, a "broker must prove that he or she caused his

or her customer to negotiate with the seller and that the transaction is later

consummated through direct negotiations between the seller and the broker's

customer, even though the seller accepts terms different from those expressed in

the listing agreement." Ibid. Of particular importance in this case, the doctrine

further provides that the customer must make the purchase without a substantial

break in the ensuing negotiations. Ibid. The mere act of introducing a buyer to

the property is not enough to constitute an efficient procuring cause of the sale.

See C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 81

(App. Div. 1989) ("[I]t is clear that plaintiff introduced [the defendant] to the

property. However, that does not suffice to establish plaintiff's claim to a

commission.").

      Here, as the trial court found, plaintiff did not satisfy the requirements of

the efficient procuring cause doctrine given the substantial break in negotiations

between Siegel and plaintiff before the property finally sold. However, the

threshold question before us is not whether plaintiff satisfied all of the

prerequisites of the efficient procuring cause doctrine, but rather whether that

doctrine should be invoked when a contract specifies when a commission should

be paid.


                                                                           A-0262-18T3
                                       11
      The efficient procuring cause doctrine fills a void when a contract fails to

specify when a commission is earned after the expiration of an exclusive listing

agreement. We are not aware of any authority, however, that holds that this

doctrine is automatically embedded in every exclusive listing agreement. The

doctrine, while frequently applied by New Jersey courts, does not foreclos e

parties from agreeing to a different formulation, especially when, as in this case,

both parties to a contract are sophisticated and experienced in the sale of

commercial realty. As we have noted, the doctrine applies "in the absence of

some qualifying or oppugnant expression in the contract," George H. Beckmann,

Inc., 40 N.J. Super. at 196, indicating that the contract terms take precedence.

Brokers and commercial property sellers, in other words, are not precluded as a

matter of law or public policy from entering into a contract that provides that

introduction of the property to the buyer is sufficient to justify a commission.

      In sum, we hold that when a contract between a broker and property seller

explicitly sets forth the circumstances when the broker is entitled to a

commission, a court called upon to review and enforce the contract must look

first to the terms of the contract. A court may not superimpose onto the contract

the elements of the efficient procuring cause doctrine if the contract ade quately

expresses the agreement of the parties as to when the broker is entitled to a


                                                                           A-0262-18T3
                                       12
commission. See Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd., 401

F.3d 770, 774, 778–79 (6th Cir. 2005) (holding the procuring cause doctrine

does not apply when the contract does not require a party to establish it was the

procuring cause); Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1064

(8th Cir. 1995) ("[t]he procuring cause doctrine is limited by the terms of a

contract; it cannot be used to supplant or contradict the terms of a contract

entered into between parties."); Meyer Group, Ltd. v. United States, 121 Fed.

Cl. 105, 125 (2015) ("However, it is settled law that when a brokerage agreement

sets forth what actions a broker must take to be entitled to a commission, the

terms of that agreement override any procuring cause analysis.").

      We believe this approach is consonant with the foundational principle that

a contract cannot be written by the court "for the parties better than or different

from the one they wrote for themselves." GMAC Mortg., LLC, v. Willoughby,

230 N.J. 172, 186 (2017) (quoting Kieffer v. Best Buy, 205 N.J. 213, 223

(2009)). Rather, when examining a contract, the task of the reviewing court is

to "enforce the contract according to its terms, giving those terms 'their plain

and ordinary meaning.'" Ibid. (quoting Kieffer, 205 N.J. at 223).




                                                                           A-0262-18T3
                                       13
                                       IV.

      We next address whether plaintiff satisfied the terms of the contract that

prescribe when a commission is earned for a sale occurring after the exclusive

listing period has expired. In evaluating a contract, "the terms of the agreement

must 'be sufficiently definite [so] "that the performance to be rendered by each

party can be ascertained with reasonable certainty."'" Id. at 185 (quoting

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992)). In this instance, the

paragraph of the contract pertaining to plaintiff's entitlement to a commission

after expiration of the exclusive listing is hardly a model of precise

draftsmanship.

      The specific provision at the heart of this appeal provides:

            Your commission shall be considered earned if the
            property is sold or exchanged by anyone during this
            exclusive period. If a sale or exchange is consummated
            after the termination of this agreement to or on behalf
            of a party who was introduced to the property by
            [plaintiff], [plaintiff] will also be entitled to the full
            commission.

            [Emphasis added.]

                                       A.

      Defendant argues that the contract insufficiently defines the word

"introduced," and that plaintiff's actions did not constitute a sufficient


                                                                         A-0262-18T3
                                       14
introduction of Siegel to the property. We disagree, as did the trial court, and

we affirm that part of the trial court's opinion.

      The trial court reasoned that because "both parties . . . have ample

experience in drafting legal documents involving real estate[,] [i]t would be

inappropriate to simply construe against the plaintiff for failing to include a

definition of [']introduce['] being that the defendant failed to include a definition

as well." The trial court went on to explain that, when employing a modern

perspective, "reasonable people would automatically interpret 'introduce' to

include a variety of modes of communication, such as email, that can be used

by brokers to disseminate real estate offerings."

      We concur with the trial judge that the term "introduce" as used in the

contract means familiarizing a potential purchaser with a property, and that the

email and attached prospectus detailing the property that plaintiff's agent s ent to

Siegel "was enough to pique Siegel's interest in the building as an investment

opportunity." Accordingly, we accept the trial court's finding that plaintiff

introduced the property to Siegel within the meaning of the contract.

                                         B.

      We turn next to defendant's contention that Siegel was not a party to whom

the sale was consummated within the meaning of the contract. Both parties


                                                                             A-0262-18T3
                                        15
presented evidence in support of their respective positions with respect to

Siegel's role in consummating the purchase. After reviewing that evidence, the

trial court found that Siegel acted as an undisclosed principal for 406.1

      We generally defer to a trial court's findings of fact, Seidman, 205 N.J. at

169, and accordingly, we defer to the trial court's finding that Siegel became a

principal of 406. A critical fact-sensitive question that remains unresolved,

however, is what the parties to the contract intended by the phrase, "[i]f the

property is sold or exchanged . . . to or on behalf of a party who was introduced

to the property." Did the parties intend, for example, that plaintiff would receive

a commission based on introducing the property to a person who becomes an

investor in a corporation after a winning bid is placed by another person but

before the newly formed corporation consummates the final purchase of the

property? That contract interpretation question must be resolved before a court

can determine whether the property was sold "to or on behalf of" Siegel.




1
  In this instance, the plaintiff introduced the property to a person, Siegel, who
acquired a ten to twenty percent interest in the purchasing corporation after the
winning bid was placed. However, Siegel discussed the property with Ornstein
before she placed the winning bid. Furthermore, Siegel became an investor in
406 before the sale was consummated, and indeed, he was the individual who
signed the contract for the sale of the property on behalf of 406.


                                                                            A-0262-18T3
                                       16
      We deem it inappropriate for us to exercise original jurisdiction to

determine the intended meaning of this contract provision. 2 See R. 2:10-5 ("The

appellate court may exercise such original jurisdiction as is necessary to

complete the determination of any matter on review." (emphasis added)); Price

v. Himeji, LLC, 214 N.J. 263, 294–96 (2013) (explaining that R. 2:10-5 "allow[s

an] appellate court to exercise original jurisdiction to eliminate unnecessary

further litigation, but discourage[s] its use if factfinding is involved." (alteration

in original) (quoting State v. Santos, 210 N.J. 129, 142 (2012))). We therefore

remand the matter for the trial court to make findings as to the meaning of this

portion of the contract, 3 and then to apply that interpretation to the facts relating

to Siegel's role with regard to purchase of the property in this case. Nothing in



2
   Both parties in this case chose to have the trial decided by the judge based
upon the same documents and deposition transcripts that had been submitted in
their respective motions for summary judgment. We leave it to the discretion of
the trial court on remand whether additional testimony or other evidence is
needed to interpret the agreement and ascertain the intent of the contracting
parties. See N.J. Div. of Child Prot. & Permanency v. S.W., 448 N.J. Super.
180, 183, 192–93 (App. Div. 2017) (opining that parties are not entitled to hear
a case on the papers, rather it is in the judge's discretion whether to proceed in
that manner or not).
3
  We leave it to the trial court to determine in the first instance whether this
portion of the contract is not "sufficiently definite [so] 'that the performance to
be rendered by each party can be ascertained with reasonable certainty.'" GMAC
Mortg., LLC, 230 N.J. at 185 (quoting Weichert Co. Realtors, 128 N.J. at 435).
                                                                              A-0262-18T3
                                         17
this opinion should be construed as expressing our view on how broadly or

narrowly this portion of the exclusive listing agreement should be interpreted.

                                       V.

      Defendant contends that plaintiff violated the implied covenant of good

faith and fair dealing by failing to identify, when the contract ended, all

individuals plaintiff introduced to the property. In support of this contention,

defendant cites King v. Dean, 249 N.E.2d 45 (Ohio 1969). In that case, the Ohio

Supreme Court determined that a broker has an obligation to disclose to the

seller the identity of those persons with whom the broker had negotiated during

an exclusive listing agreement. Id. at 47.      Defendant concludes that this

obligation should be imposed under "New Jersey's fairness requirement." So far

as we can determine, no New Jersey court has adopted this rule. 4


4
  The position staked out by the Supreme Court of Ohio appears to be the
minority rule on the matter of a real estate broker's duty to inform owners of
potential purchasers contacted by the broker. Easton Bus. Opportunities, Inc. v.
Town Exec. Suites E. Marketplace, LLC, 230 P.3d 827, 833 (Nev. 2010). The
majority rule is that a real estate broker's entitlement to a commission is not
dependent upon the owner's knowledge of the broker's role in procuring the
purchaser of the property. T.C. Williams, Annotation, Real-Estate Broker's
Right to Commissions as Affected by Owner's Ignorance of Fact That Purchaser
Had Been Contacted by Broker, 142 A.L.R. 275 (1943 & Supp. 2010). Our
courts have adhered to the majority rule with few exceptions. Walsh v. Isgro,
121 N.J.L. 165, 169 (E. & A. 1938); McLaughlin v. Campbell, 78 N.J.L. 541,
548 (E. & A. 1909) ("[T]he plaintiff's right of recovery is not dependent upon


                                                                         A-0262-18T3
                                      18
      Every contract in New Jersey contains an implied covenant of good faith

and fair dealing. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420

(1997). This covenant requires that "neither party shall do anything which will

have the effect of destroying or injuring the right of the other party to receive

the fruits of the contract." Id. (quoting Palisades Props., Inc. v. Brunetti, 44 N.J.

117, 130 (1965)).

      We appreciate that if plaintiff were to prevail, defendant will have to pay

a commission to two brokers. 5 We do not believe, however, that plaintiff injured

the right of defendant to receive the fruits of the contract. 6 On the record before

us, we decline to follow the lead of the Supreme Court of Ohio by imposing a

duty on real estate brokers to disclose to property sellers the names of all

individuals they introduce to property that is subject to an exclusive listing


the knowledge of the defendant that the purchaser came to purchase in
consequence of information obtained through the plaintiff."); but see Resky v.
Meyer, 98 N.J.L. 168 (E. & A. 1922) (holding broker not entitled to commission
where broker's customer purchased real estate from owner through a dummy
buyer).
5
  We note that Conover, the broker that replaced plaintiff, was alerted to the
fact that Siegel had discussed the property with plaintiff.
6
  In the particular circumstances of this case, we believe that those who form a
new corporation whose sole purpose is to purchase and hold title to a particular
property can ascertain whether investors had previously been introduced to the
property.
                                                                             A-0262-18T3
                                        19
agreement. The parties to an exclusive listing agreement are of course free to

include such a registration requirement as a term of the contract, just as they are

free to incorporate the elements of the efficient procuring cause doctrine into

the terms of the contract.

      To the extent we have not already addressed them, any other arguments

raised by defendants on this appeal do not have sufficient merit to warrant

discussion in this written opinion. R. 2:11-3(e)(1)(E).

                                       VI.

      For the foregoing reasons, we reverse and remand this matter for the trial

court to determine whether the sale of the property was "to or on behalf" of

Siegel within the meaning of the exclusive listing agreement. We do not retain

jurisdiction.

      Reversed and remanded.




                                                                           A-0262-18T3
                                       20
