Express Brokerage, Etc. v. Theresa Vargas ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3804-21
EXPRESS BROKERAGE,
d/b/a RAZA FAISAL,
Plaintiff-Appellant,
v.
THERESA VARGAS, BERGEN
PASSAIC AMBULATORY
SURGERY CENTER, INC.,
MEGA MEDICAL GROUP, LLC,
DR. MIRZA BEG, and
DR. SHAMS QURESHI,
Defendant-Respondents.
______________________________
Submitted January 24, 2024 – Decided March 6, 2024
Before Judges Currier and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-8917-18.
Robert A. Skoblar, attorney for appellant.
Callagy Law, PC, attorneys for respondents (Robert J.
Solomon, of counsel and on the brief).
PER CURIAM
This matter arises out of a dispute concerning a brokerage agreement for
the sale of a medical practice and surgical center. Plaintiff Express Brokerage
(Express) contends it was not paid a finder's fee it was entitled to, prompting it
to file a lawsuit alleging breach of contract, fraud, unjust enrichment, and
quantum meruit. Plaintiff appeals a June 28, 2022 Law Division order excluding
text messages from trial and a June 29, 2022 order1 entering judgment in favor
of defendants Theresa Vargas, Bergen Passaic Ambulatory Surgery Center , Inc.
(BPASC), Dr. Mirza Beg, Dr. Shams Qureshi, and Mega Medical Group, LLC
(Mega Medical) following a bench trial. After carefully reviewing the record in
light of the governing legal principles and arguments of the parties, we affirm.
I.
We discern the following facts and procedural history from the record.
Plaintiff introduces buyers to sellers to help effectuate the sale of a business.
The amended complaint asserted Raza Faisal is a principal of Express and the
action was brought by "Express Brokerage d/b/a Raza Faisal." However, Faisal
testified he is only an employee of Express, which is owned by his daughter.
1
Plaintiff also challenges a February 16, 2022 order granting partial summary
judgment against it and a March 18, 2022 order quashing plaintiff's request for
admissions. As we explain, those orders are not properly part of this appeal.
We decline to review them on the merits.
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Defendant BPASC is an ambulatory surgical center providing services to
physicians. In 2014, Vargas—BPASC's owner—wanted to sell the business and
began looking into services to effectuate the sale.
BPASC and Mega Medical were in the same building. Mega Medical is
a separate corporation owned by Beg. Vargas was Mega Medical's
"administrative head" and "financial advisor." 2
On June 24, 2014, BPASC entered into a contract with Express to aid in
the sale of BPASC in exchange for a finder's fee. Express was contracted to
introduce BPASC to potential buyers and help arrange the sale of BPASC,
limited to a six-month time frame. Vargas executed the agreement on behalf of
BPASC. Faisal executed the agreement on behalf of Express. According to
Vargas' testimony, Faisal entered into the agreement in his capacity as an owner
of Express. See supra note 2.
Capital Business Brokers of New Jersey (CBB) negotiates commercial
business transactions on a commission basis. In July 2014, Faisal contacted
CBB asking whether they knew of buyers interested in purchasing a surgical
2
In the complaint, plaintiff alleged Vargas was an owner of Mega Medical,
which has since been disproven. Plaintiff then pivoted, arguing Vargas was "a
de facto owner" of Mega Medical.
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center. Kate Costello, the principal of CBB, met with plaintiff and Vargas to
discuss an agreement whereby CBB would market BPASC to potential buyers.
Plaintiff made it clear to Costello that if she were to introduce a buyer to
the transaction, she must obtain compensation from the buyer or negotiate her
own agreement with BPASC. CBB and BPASC entered into a separate
agreement concerning CBB's commission.
During her trial testimony, Vargas identified Costello as the broker that
brought Dr. Amit Poonia—the individual who ultimately purchased BPASC—
into BPASC in December 2014. Vargas identified a December 2, 2014
agreement between CBB and BPASC. That agreement did not mention plaintiff,
Faisal, or the finder's agreement between BPASC and plaintiff.
Plaintiff alleged an oral contract existed outside of the finder's agreement,
entitling Express to a $100,000 commission tied to CBB's performance based
upon a conversation Faisal claims occurred between Costello, Vargas, and
himself in July 2014. Despite plaintiff's contention, the finder's agreement states
unequivocally it "embodies the entire understanding between the parties" and
the "agreement may not be assigned or modified without the written consent of
both parties."
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At trial, there was a factual dispute as to who introduced Poonia to Vargas.
Faisal testified he introduced Vargas to Poonia around June 27, 2014. Costello
testified she brought Poonia to BPASC around December 2, 2014, which was
when Poonia became aware Mega Medical was also for sale. Poonia learned he
could purchase the entire building housing BPASC and Mega Medical.
On October 6, 2015—well past the finder's agreement's six-month
timeframe—Poonia purchased BPASC for $3,000,000. At the closing, CBB was
paid $100,000. Poonia also purchased Mega Medical for $1,500,000. Plaintiff
did not receive any payment in connection with either sale.
Faisal claimed that when he found out about the sale of Mega Medical, he
spoke to Vargas who told him "not to worry" and that he would "be taken care
of regarding the sale of Mega Medical." Vargas denied ever entering into a
finder's agreement with Faisal or plaintiff for the sale of Mega Medical. Vargas
also denied telling Faisal she would pay him $80,000 for the sale of Mega
Medical and BPASC. No additional written agreements between
Vargas/BPASC and Faisal/Express were entered into evidence during trial.
On September 19, 2019, plaintiff filed an amended complaint alleging
breach of contract against Vargas and BPASC (count one); fraud against Vargas
and Qureshi pertaining to the sale of BPASC (count two); breach of contract
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against Vargas, Beg, and Mega Medical (count three); fraud against Vargas and
Beg pertaining to the sale of Mega Medical (count four); unjust enrichment
against all defendants (count five); and quantum meruit against all defendants
(count six).
Following the close of discovery, on January 7, 2022, defendants Vargas
and BPASC moved for summary judgment, which plaintiff opposed. On
February 16, 2022, the judge granted the motion for summary judgment in part
and denied it in part. The order dismissed counts two, four, five and six. Counts
one and three survived.3
On February 7, 2022, after discovery closed and the summary judgment
motion was decided, plaintiff served requests for admissions due thirty days
following service. At this point, the matter was scheduled to be tried on March
6, 2022. The judge quashed the request for admissions as untimely.
Because of scheduling conflicts, the trial was delayed until June 2022. On
June 14, 2022, plaintiff served defendants with "nearly fifty pages" of "recently
recovered" text messages. Defendants filed a motion in limine seeking to
3
The remaining counts do not involve defendant Qureshi. Plaintiff's brief
claims "Qureshi filed for bankruptcy and the case was stayed as to him ."
However, there is no documentation supporting this in the appellate record.
A-3804-21
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prevent plaintiff from using the text messages at trial. The trial judge granted
defendants' motion.
A bench trial was convened on June 28, 2022 and June 29, 2022.
Following closing arguments, the trial judge delivered her decision on the
record. She found the purported verbal agreement was not memorialized in
writing. The judge found "it incredulous that an experienced broker would not
have memorialized the terms of the agreement [specifying] payment for services
rendered." Even if a verbal agreement existed, the judge concluded the finder's
agreement was clear that a modification or extension of the agreement had to be
reduced to a writing signed by both parties.
As to plaintiff's breach of contract claim against BPASC and Vargas, the
trial judge found the record clearly established a contract existed between
Express and BPASC. Despite questions regarding Faisal's employment status,
the judge determined "the terms were sufficiently defined [regarding] the part
of the performance to be rendered by each party and this [c]ourt was able to
ascertain those performance obligations with reasonable certainty," citing to
West Caldwell v. Caldwell, 26 N.J. 9, 24-25 (1958). The judge concluded
Vargas and Express "had agreed upon essential terms of the finder's fee and they
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manifested an intention to be bound by those [terms]; therefore, they created an
enforceable contract."
The trial judge further concluded plaintiff had not met its burden of
establishing BPASC breached its contract with Express. The sale was not
completed within the term of the agreement and there was no extension of the
finder's fee agreement. Accordingly, as to count one, the trial judge found for
BPASC and dismissed that count.
The judge then turned her analysis to plaintiff's breach of contract claim
as to Vargas and Mega Medical. She found plaintiff failed to establish an
agreement existed between Mega Medical, its then-owner Beg, and
Express/Faisal, let alone that any agreement was breached. In absence of any
written contract, the trial judge found in favor of Mega Medical and Beg and
dismissed count three.
Concerning the factual dispute as to who introduced Poonia to Vargas, the
judge found Costello, "to be very credible in that she is an experienced broker"
and was clear in her testimony. In contrast, the trial judge found Faisal did not
accurately recall dates, did not provide straight answers or detailed testimony,
and embellished his testimony. The judge noted she had to interrupt Faisal's
testimony "on several occasions so that he would stay on task and provide
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accurate testimony." She was troubled by Faisal's use of his wife's work email
address to correspond with his prior attorney. The judge found it "odd" a
company established for at least ten years would not have its own email.
Additionally, the judge highlighted the "internal contradiction" of Faisal's
testimony regarding his position in Express as an employee compared to the
complaint asserting he is a principal.
Based on the foregoing findings, the trial judge entered judgment in favor
of defendants and dismissed plaintiff's complaint in its entirety. Plaintiff's
counsel then asked a question about a motion for reconsideration, but no such
motion was ever made.
This appeal follows. Plaintiff contends the motion judge's summary
dismissal of four counts of its complaint should be reversed because plaintiff
was not afforded reasonable inferences and the motion judge erred when it
quashed plaintiff's request for admissions. Plaintiff also contends: the trial judge
ignored overwhelming evidence that plaintiff was the efficient procuring cause
of both sales; the trial judge committed erred by excluding the text messages;
and the trial judge's "belligerent attitude" towards plaintiff and his counsel
amounted to a denial of due process.
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II.
We first address plaintiff's contention the February 16, 2022 order
granting summary judgment dismissal of counts two, four, five and six of the
complaint should be reversed because the motion judge did not afford reasonable
inferences to plaintiff. It should be noted plaintiff did not indicate in its notice
of appeal that it was appealing the February 16, 2022 order granting partial
summary judgment. 4 Nor did plaintiff serve notice of the appeal on the motion
court judge. R. 2:5.1(c)(1).
Additionally, the defendants who were dismissed from the lawsuit by the
grant of partial summary judgment 5 did not receive adequate notice the order
dismissing plaintiff's counts against them would be the subject of this appeal.
We adhere to the well-established principle only the judgments or orders
or parts thereof designated in the notice of appeal are subject to the appeal
process and review. See Pressler & Verniero, Current N.J. Court Rules, cmt. on
R. 2:5-1(f) (2023); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66
4
Plaintiff's notice of appeal states he is appealing from the "June 29, 2022
[o]rder dismissing complaint," identifying it as the "judgment filed after bench
trial (June 28, 2022) dismissing [p]laintiff's complaint in its entirety against all
remaining defendants."
5
The order granting partial summary judgment dismissed all counts against
Qureshi and Beg.
A-3804-21
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(App. Div. 1994), aff'd o.b., 138 N.J. 41 (1994); 1266 Apt. Corp. v. New Horizon
Deli, 368 N.J. Super. 456, 459 (App. Div. 2004). Accordingly, this argument is
not properly before us. We therefore decline to hear it on the merits.
III.
We reach a similar conclusion with respect to plaintiff's contention the
motion court erred when it entered a March 18, 2022 order quashing plaintiff's
request for admissions. Yet again, plaintiff did not indicate he was appealing
this order in his notice of appeal. As noted, the notice of appeal did not indicate
plaintiff was challenging any decision by the motion judge; it only refers to the
trial judge. See supra note 6.
We add, based on the record before us, it does not appear that plaintiff
served the notice of appeal on the motion judge as required by R. 2:5.1(c)(1).
Plaintiff provided us only a copy of the motion court order without any written
or oral decision. On this record, it is not possible to determine whether the
motion judge abused its discretion. Accordingly, we conclude this argument is
not properly before this court. We decline to address it on the merits.
IV.
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We turn next to plaintiff's contention the trial judge erred by excluding
the fifty pages of text messages served on defendants two weeks before trial.6
We begin our analysis by acknowledging an appellate court defers "to a trial
court's evidentiary ruling absent an abuse of discretion." State v. Garcia, 245
N.J. 412, 430 (2021). Appellate courts review the trial court's evidentiary ruling
"'under the abuse of discretion standard because, from its genesis, the decision
to admit or exclude evidence is one firmly entrusted to the trial court's
discretion.'" State v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). "Under that
deferential standard, we review a trial court's evidentiary ruling only for a 'clear
error in judgment.'" State v. Medina, 242 N.J. 397, 412 (2020) (quoting State v.
Scott, 229 N.J. 469, 479 (2017)).
The trial judge granted defendants' motion to exclude the additional text
messages, citing Rule 4:10-3, which prescribes how discovery is to be conducted
in litigation. Plaintiff offered no case law permitting it to serve documents not
disclosed during discovery as part of a pretrial exchange. The trial judge also
found it "incredulous" that plaintiff knew of the existence of these messages and,
6
Although this issue is not identified in the notice of appeal, see supra note 6,
the trial judge's decision is part of the appellate record. We choose to address
this contention on the merits.
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almost two years after the close of discovery, suddenly realized he was able to
recover the messages. Accordingly, the trial judge found "no basis to permit
[plaintiff] to conduct trial by ambush by serving belated discovery, when there
[are] no exceptional circumstances that have been demonstrated to warrant the
denial of the motion."
We conclude the trial judge did not abuse her discretion in the way she
enforced the rules of discovery. As the trial judge stressed, plaintiff did not
provide any legal support for its position; nor did plaintiff demonstrate
exceptional circumstances to allow the late submission of evidence.
V.
Plaintiff's main argument on appeal is the trial judge erred by "ignor[ing]
overwhelming evidence" plaintiff "was a substantial procuring cause" of
BPASC and Mega Medical's sales. "We review the trial court's determinations,
premised on the testimony of witnesses and written evidence at a bench trial, in
accordance with a deferential standard." D'Agostino v. Maldonado, 216 N.J.
168, 182 (2013). Moreover, appellate courts "'do not disturb the factual findings
and legal conclusions of the trial judge unless convinced that they are so
manifestly unsupported by or inconsistent with the competent, relevant and
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reasonably credible evidence so as to offend the interests of justice.'" Ibid.(quoting Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)).
The efficient procuring cause doctrine was developed in case law 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 they "caused a person
to negotiate with [the] defendant and that person purchased the stock and paid
the price without a substantial break in the ensuing negotiations"). The
doctrine's basic application is:
[I]n the absence of some qualifying or oppugnant
repugnant? 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, we have applied the doctrine "to permit a broker to recover a
commission upon a sale made [even] after [the] expiration of an exclusive . . .
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brokerage contract." Leadership Real Estate, Inc. v. Harper, 271 N.J. Super.
152, 183 (Law. Div. 1993).
For the efficient procuring cause doctrine to apply, 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 [defendant] to the property. However, that does not suffice to
establish plaintiff's claim to a commission.").
In the matter before us, we are not persuaded plaintiff established the basis
for applying the efficient procuring cause doctrine. When a contract between a
broker and property seller explicitly provides the circumstances under which 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
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superimpose onto the contract the elements of the efficient procuring cause
doctrine if the contract adequately expresses the agreement of the parties as to
when the broker is entitled to a 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.").
This approach is consonant with the bedrock principle that the court
"cannot 'rewrite a contract 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 (2011)). 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).
Here, the trial judge did just that. She determined "the terms [of the
agreement] were sufficiently defined . . . and th[e] [c]ourt was able to ascertain
those performance obligations with reasonable certainty." She found the sale
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was not completed within the term of the agreement and it was not extended.
The trial judge further reasoned that even if a verbal agreement existed, the
finder's fee agreement was very clear that a modification or extension of the
agreement needed to be reduced to a writing signed by both parties. No such
writing exists. Accordingly, the judge concluded Faisal's actions contravened
the written agreement's express terms and could not be used to invoke the
efficient procuring cause doctrine.
We are satisfied the trial judge's findings of facts and conclusions of law
were well supported by the record. Plaintiff's argument on appeal focuses on
Costello's testimony, who the trial judge found to be a credible witness. Costello
testified she brought Poonia to the transaction, not Faisal.
Furthermore, plaintiff had the burden to prove an agreement existed
between BPASC and Express as to count one and between Mega Medical and
Express as to count three. Plaintiff did not establish the existence of any
agreement as to Mega Medical. The agreement as to BPASC expired before the
sale was effectuated. Considering the clear terms of the finder's fee agreement,
we agree with the trial judge's conclusion the efficient procuring cause doctrine
does not apply.
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VI.
Lastly, plaintiff contends he was denied due process because the trial
judge was biased and displayed a "belligerent attitude." Nothing in the record
suggests a basis for recusal or disqualification. Accordingly, this argument
lacks sufficient merit to warrant extensive discussion. See R. 2:11-3(e)(1)(E).
A judge "shall be disqualified" if there is any reason "which might
preclude a fair and unbiased hearing and judgment, or which might reasonably
lead counsel or the parties to believe so." R. 1:12-1(g); see also Code of Jud.
Conduct, r. 3.17(B)(1) ("Judges shall disqualify themselves if they have a
personal bias or prejudice toward a party or a party's lawyer."). "The
disqualification decision is initially left to the discretion of the trial court." State
v. Marshall, 148 N.J. 89, 275-76 (1997). "[J]udges are not free to err on the side
of caution; it is improper for a court to recuse itself unless the factual bases for
its disqualification are shown by the movant to be true or are already known by
the court." Id. at 276.
Importantly, plaintiff did not file a motion to recuse the trial judge
pursuant to Rule 1:12-2. Nor does the record disclose any basis to conclude the
trial judge should have disqualified herself on the court's own motion. See R.
1:12-1. "'Fundamental to any consideration of possible judicial disqualification
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is a showing of prejudice or potential bias.'" Marshall, 148 N.J. at 276 (quoting
State v. Flowers, 109 N.J. Super. 309, 312 (App. Div. 1970)). "Bias cannot be
inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J.
Super. 298, 318 (App. Div. 2008). The "unduly harsh statements" plaintiff relies
on are nothing more than the trial court exercising control of the courtroom and
requesting counsel to support arguments with citations to precedent or court
rules.
Affirmed.
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