The opinion of the court was delivered by DREIER, J.A.D.
Plaintiff has appealed from a judgment for defendants in this action for real estate commissions arising from the lease and sale of a portion of the property on which the Trump Plaza Hotel and Casino is now located. The trial judge determined that plaintiff was entitled to rental commissions only from April through October 1983, but that its claims for rental commissions thereafter and commissions upon the sale of the real estate were unwarranted. He further found that plaintiff's commission agreement was limited to a sale pursuant to the strict terms of an option to purchase granted in the original lease, but that the actual sale was by a renegotiated separate sales agreement, executed after a valid termination of the original lease in which the option to purchase had been included. We are constrained to reverse.
Plaintiff and SSG's predecessor entered into a brokerage agreement calling for a six percent rental commission, and a six percent sales commission if the tenant exercised the option to purchase to be contained in a contemplated lease. The eventual SSG-Trump lease, signed July 18, 1980, contained various cancellation provisions discussed infra, and recognized SSG's obligation to pay plaintiff's commission or commissions. The lease
The revised commission agreement between plaintiff and SSG decreased the amount of commission from the original six percent to five percent and restricted payment of the commissions to situations where there was a "fully effective" lease with Trump. The agreement also recited that a five percent commission would be payable if the lessee properly exercised its purchase option. The trial judge determined that Paul Longo, the employee of plaintiff in charge of this transaction, signed the agreement "voluntarily and understandingly," and that his attorney had received copies of the proposed lease and commission agreement before the July 18th meeting.
Plaintiff received its commissions for the first two years' rental, prepaid at the time of the execution of the lease. Thereafter additional rental commissions were paid for the period July 1, 1982 through March 31, 1983. After that date no further commissions were paid, although rent was paid through October 1983, and the court correctly awarded plaintiff commissions for that period.
After the lease was executed, Trump commenced construction and pursued his casino license application. By October 1, 1983, the tower erected on the square block including the subject premises was 95 percent completed and had a value of between $230,000,000 and $240,000,000. Approximately $72,000,000 of the construction rested on the SSG parcel. Contemporaneously, however, the Casino Control Commission had through its counsel voiced numerous objections concerning the lease. It ruled that the lessors must qualify as financial
At a subsequent meeting in New York in mid-October 1983, Donald Trump and Daniel Sullivan resolved their differences by permitting Trump to purchase the premises for $8,000,000 on approximately the same terms as were set forth in the lease.
As to the basic facts adjudicated by the judge, we have no hesitancy in upholding his findings. There was sufficient credible evidence present in the record, considering the proof as a whole, to sustain his conclusions. Rova Farms Resort v.
SSG undertook to pay plaintiff's commission under the terms of the revised commission agreement of July 18, 1980:
Since the agreement circumscribed plaintiff's right to a commission, if, the lease in fact had been terminated and not restored, and particularly if the parties had entered into a substantially dissimilar purchase arrangement, we might have had no cause to disturb the trial judge's ruling.
This deed is signed by SSG Enterprises by representatives of The Sullivan Group, The Goldberg Group and The Shapiro Group, including Daniel J. Sullivan, all of whom contended at trial that the lease had been terminated. The deed was acknowledged and recorded. In addition to the deed, SSG Enterprises executed and delivered at the closing an assignment of the Ground Lease; and the affidavit of title, also executed under oath, noted an exception for the Ground Lease from the general negation of any other outstanding interests created by SSG affecting its ownership or use of the property. Lastly, the
It makes no difference to plaintiff's position if the lease was reinstated at the closing, or if it had never been effectively terminated. It is further immaterial that the parties did not designate their transaction as an exercise of the option under the lease, or even, as here, if they signed a declaration to the contrary. See note 5, supra. The fact remains that the parties treated the lease as fully effective at the closing, and Trump took title upon terms substantially in accordance with the option. We are, therefore, constrained to reverse. Plaintiff was contractually entitled to receive its commission from SSG.
We must next discuss whether the Trump group may likewise be responsible for the payment of the commission based upon any tortious interference with plaintiff's contractual rights, conspiracy or fraudulent concealment of any facts from plaintiff. Viewing the actions of Trump up to the settlements of the summary dispossess and specific performance actions, we find no basis for plaintiff's assertion of wrongdoing. Donald
These facts, however, may or may not permit an inference of sufficient legal malice to sustain a finding of tortious interference at least at the signing of the closing documents. The final agreement went further than the mere transfer of title on terms substantially the same as those in the lease. The "gentlemen's agreement" with Sullivan to sell at the same $8,000,000 price as was contained in the original lease resulted in Trump's executing and delivering a written confirmation that the acquisition of the property was "not an exercise of the Lessor's option to purchase pursuant to the lease." That agreement, however, also precipitated the exchange of the letters and indemnification agreements, noted above, stating that no broker had brought about the transaction. Trump signed these letters knowing full well that plaintiff had brought the parties together and that his commission agreement had been memorialized in the original lease.
Most of our reported cases deal with a buyer's or seller's obligation for a commission when the sale was not consummated. In such cases in determining the buyer's liability to the broker, the court must examine both the sales agreement between buyer and seller and the commission agreement between broker and seller. Rothman Realty Corp. v. Bereck, 73 N.J. 590, 600-01 (1977). The Court there noted:
Since title passed, the first element of the Rothman equation has no application here. The issue, however, is whether Trump could have been found to have breached any agreement with plaintiff, an acknowledged third-party beneficiary of the original
As was noted in Joseph Hilton & Associates Inc. v. Evans, supra, 201 N.J. Super. at 167-68:
See also Loeb v. Peter F. Pasbjerg Co., 22 N.J. 95, 100-01 (1956), where one of two co-brokers waived his commission in order to facilitate the sale, and the question there was whether, in doing so, and without authority, he also waived his co-broker's commission. The Supreme Court stated that the broker was
Here Trump negotiated the price of $8,000,000 without commission. Many cases have discussed a buyer's good faith
The trial judge in his opinion found that SSG and Trump had not "acted in concert to induce SSG to break the commission agreement with plaintiff." The trial judge reached this conclusion on the basis of a finding that the commission agreement was ineffective. The court made specific findings that Trump had not induced Sullivan to breach the commission agreement, stating that having observed Sullivan closely on the witness stand "the Trump/Harrah's defendants could [not] have persuaded him to get a drink of water if he did not want one, let alone breach the terms of a contract." This conclusion misses the point. Plaintiff does not claim that Trump induced Sullivan to breach the contract, but rather that Trump aided Sullivan in an attempt to breach the commission agreement by signing the "non-exercise" and "no broker" letters, thus saving SSG or Trump $400,000 or more.
A harder question is the measure of damages against Trump for an attempted breach of the commission agreement, if the trial judge determines the liability issue adversely to Trump. Had the question been presented at or before closing, a court could merely have ordered that the commission be paid as a disbursement. Even at this time, plaintiff may be made whole from the payments still owing on the $3,000,000 balance secured by the letter of credit. At oral argument before us, however, counsel for plaintiff expressed some reservation concerning the collectability of a judgment against SSG, and we have no way of knowing whether such future payments have been assigned, attached or otherwise shielded from plaintiff's collection efforts. Trump's participation may have caused plaintiff to lose nothing or may have occasioned a mere Pyrrhic victory against SSG if its assets are indeed dispatched.
The trial judge initially found no legal malice, citing Lewis Schlesinger Co. v. Rice, 4 N.J. 169, 181 (1950). Trump's attempt to preserve his economic position by settling with SSG may not be considered malicious in common parlance. But as legally defined, the malice required for the tort of malicious interference with contractual advantage is merely "the intentional doing of a wrongful act without justification or excuse." Lewis Schlesinger Co., supra, 4 N.J. at 181. A justification or excuse, however, cannot be "the indirect purpose of benefiting the actor at the expense of another, unless done in the exercise
By executing and delivering the letters Trump could be found to have aided SSG to deprive plaintiff of its commission, and thus became a joint-tortfeasor. Were it not for its alleged active participation in SSG's breach of its commission agreement, Trump could not be liable to plaintiff for the commission, since only SSG was contractually responsible to plaintiff, and Trump would be entitled to complete indemnification both by agreement and the law. See Adler's Quality Bakery Inc. v. Gaseteria, 32 N.J. 55, 79-80 (1960).
In the usual case, the common-law right of indemnification is lost when a party is deemed a joint-tortfeasor. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 566 (1980). We note, but do not determine, that it appears inequitable, due to the primary responsibility of SSG and the indemnification letter, to enforce this general prohibition. Even as recognized in Cartel Capital Corp.:
We, therefore, point out that even if the trial judge determines Trump to be a joint-tortfeasor, Trump may be entitled not only to contribution but also to indemnification from SSG for any sums payable to plaintiff. In the event of an execution against Trump, and providing there are no third parties' vested rights involved, the commission could be deducted from any escrow funds by way of a recoupment.
Since there are still factual disputes to be resolved, we will direct a remand to the Law Division for reconsideration of the issue of the Trump defendants' liability. As there was no proof of participation in the transaction on the part of Atlantic City