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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2638-06T5 2638-06T5 PHILIP E. ALAMPI, Plaintiff-Appellant, v. PEGASUS GROUP, L.L.C., VALUE RESEARCH GROUP, L.L.C., RICHARD A. MILLER, MICHAEL RICHMAN, MARK VILLAMAR and RICHARD E. POLTON. Defendants-Respondents.

Submitted October 17, 2007 - Decided Before Judges Lihotz and Simonelli. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L929-06. Ambrosio & Associates, L.L.C., attorneys for appellant (Anthony P. Ambrosio, on the brief). Law Offices of W. Lane Miller, attorney for respondents (Mr. Miller, on the brief). PER CURIAM Plaintiff sought damages against defendants for breach of an alleged implied contract to enter into a partnership to

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purchase property located at 85 Park Avenue, Glen Ridge (the Property) for a condominium development, and quantum meruit damages "for services rendered in furtherance of the real estate venture." He appeals from the order of December 8, 2006, denying his motion for reconsideration of the order of October 20, 2006, granting summary judgment to defendants, dismissing the Complaint with prejudice. We affirm. I The following facts are from the record submitted by the parties in support of and in opposition to the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Since 1986, plaintiff has engaged full-time in an accounting practice and a real estate management business. Plaintiff admitted neither he nor his business is a licensed real estate agent or broker. Defendants Richard Miller, Mark Villamar and Michael Richman are the members of defendant Pegasus Group, L.L.C., a real estate appraisal and consulting business. Defendant Richard Polton is a real estate developer, appraiser and member of defendant Value Research Group, L.L.C. Plaintiff became aware the Property was for sale and contacted the listing broker on or about March 6, 2003, to make arrangements to view it. Because plaintiff knew he could not pursue the development project on his own, he asked Polton if Polton and his father would be interested in participating. Polton said he liked the project, his father probably would not be interested, but "he could reach out to some fellas that he did business with in the past in Hoboken, and they may be interested." Regarding how they would be included in the project, plaintiff testified at his deposition: Well, that's the next thing I brought up to [Polton]. I said, well, how would we work a deal, and he said I know these individuals, we would participate in the deal some way, they may give us a finder's fee, they may allow us to participate with our own money, let me feel them out first and see if they're interested and we'll talk about particulars later, basically. .... Actually, the comment was that they would probably give us a finder's fee, we can roll that into some sort of participation and allow us to invest our own money as well. Plaintiff understood the "fellas" Polton referred to were Miller, Richman and Villamar of the Pegasus Group. Plaintiff admitted Polton was not part of the Pegasus Group and did not represent he was part of that group. On June 17, 2003, plaintiff met Miller, Richman and Villamar for the first time and, together with Polton, they

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visited the Property. While at the Property, they met Peter Rasmusson, a real estate agent, who asked, "Are you guys one group?" Miller, who plaintiff assumed was acting on behalf of the Pegasus Group, responded, "Yes, we're all together." It is this exchange upon which plaintiff concluded he had an agreement with the Pegasus Group, Miller, Villamar, Richman and Polton, the terms of which were to view the Property, purchase it as a group, and develop it together as equal partners each holding a twenty percent interest. Plaintiff "anticipated the [partnership] would buy the building, and [he] would be a part of that entity." On January 23, 2004, plaintiff was invited to the Pegasus Group's offices to look at initial renderings of the project and discuss selecting a land use attorney. Plaintiff asked about his interest and participation in the project and "asserted to [the Pegasus Group] directly in their office that [he] wanted to be an equal partner and have equal participation, that [he] brought them the deal, and [he was] entitled to the same deal [Polton] gets and the same deal the Pegasus Group [had]." Plaintiff admitted, however, Miller "avoid[ed] all direct questions about [plaintiff's] interest," and did not answer plaintiff's questions, leading plaintiff to believe: that there might be a problem. Because when they started speaking in Yiddish to each other, joking, I thought I might be on the outs or have a problem. Plaintiff admitted Miller never said they would purchase the Property together as a group or indicated "what [the] percentages would be and how the deal would be struck." Plaintiff also admitted the following: there was no agreement about how much money he would invest; no one ever asked him for any investment money; no one, except Polton, ever told him he was going to be an equal partner; Villamar and Richman never made any promises to him; and he had no written agreement with any of the defendants. Regarding the alleged services performed for defendants, although plaintiff discussed with Miller and Polton that he would help put together an offering statement, no fee was negotiated for this service and there is no evidence plaintiff performed it. Plaintiff also believed he would manage the Property after completion of the project, but the fee for this service would be paid by the homeowners, not defendants. Plaintiff only performed the following: went to the township to pick up a neighborhood study and forwarded it to the Pegasus Group; met with defendants whenever they asked him to meet; provided any information defendants needed that he could get for them; and allowed defendants to use the conference room in his office as a site office until they set up their own offices. There is no evidence of any agreement to pay plaintiff for these alleged services or what the fee would be. There also is no evidence of their reasonable value. Regarding a finder's fee, plaintiff admitted, "I wasn't directly promised a referral." II
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Defendants moved for summary judgment prior to the completion of discovery and requested oral argument. The motion judge granted the motion without oral argument, Rule 1:6-2(d), and without making any findings of fact or conclusions of law, Rule 1:7-4(a). Plaintiff contends these omissions were error. Except for pre-trial discovery motions or motions directly addressed to a calendar, oral argument "shall be granted as of right" if a party requests it in the moving, answering or reply papers. R. 1:6-2(d). Where a request for oral argument on a substantive motion is properly made, denial, absent articulation of specific reasons for denial on the record, constitutes reversible error. Raspantini v. Arocho, 364 N.J. Super. 528, 531-34 (App. Div. 2003). However, the court may deny such request when special or unusual circumstances exist. Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). The court may also deny such a request if the motion is frivolous or unsubstantiated. Kozak v. Kozak, 280 N.J. Super. 272, 274-76 (Ch. Div. 1994). Here, defendants requested oral argument. It is of great concern to us that the judge denied oral argument of the summary judgment motion, and failed to state specific reasons for the denial on the record. Because there were no special or unusual circumstances, and no indication the motion was frivolous or unsubstantiated, the judge should have granted oral argument. However, the judge granted oral argument for the motion for reconsideration. Thus, both plaintiff and defendants had the opportunity to orally present their substantive arguments. It also is of great concern to us that the motion judge failed to make written or oral findings of fact and conclusions of law for both motions. Normally, under these circumstances, we would reverse and remand the matter to the motion judge to make such findings. However, Rule 2:10-5 permits us to "exercise such original jurisdiction as is necessary to complete determination of any matter on review," to avoid "perpetual litigation." Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004). Furthermore, we will exercise our original fact-finding jurisdiction where, as here, "the record is so clear and complete," and the claim is wholly without merit. Huster v. Huster, 64 N.J. Super. 29, 34 (App. Div. 1960). We, therefore, exercise original jurisdiction and address the merits of the summary judgment motion. III We use the standard the trial court uses in deciding a summary judgment motion. Bressman v. Gash, 131 N.J. 517, 528-29 (1993); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

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challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. "Genuine" means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence." Brill, supra, 142 N.J. at 535. To make the determination, the judge "'must accept as true all evidence which supports the position of the party defending against the motion and accord him [or her] the benefit of all legitimate inferences which can be deduced therefrom.'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2007)). If reasonable minds could differ, the motion must be denied. Ibid. The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)). The trial court is required to consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. The opposing party must nevertheless offer facts which are substantial or material in opposing the motion, in order to defeat the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Even though the allegations of the pleadings may raise an issue of fact, if the other papers show that, in fact, there is no real material issue, then summary judgment can be granted. Id. at 75. Thus, "[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961) (citing Gherardi v. Bd. of Educ. of the City of Trenton, 53 N.J. Super. 349, 358 (App. Div. 1958)). Furthermore, disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill, supra, 142 N.J. at 530. Therefore, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' (citation omitted) the trial court should not hesitate to grant summary judgment." Id. at 533. It is against this standard we review defendant's contention the judge erred in granting summary judgment. Plaintiff argues the judge erred in finding the transaction in question was a real estate transaction barred by the Statute of Frauds, N.J.S.A. 25:1-13. We disagree.

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Before amendments to the Statute of Frauds, L. 1995, c. 360, the law required an agreement relating to transferring or holding an interest in real estate to be in writing. In 1996, the Legislature enacted N.J.S.A. 25:1-13, which permits enforcement of an oral agreement relating to transferring or holding interest in land. The statute provides: An agreement to transfer an interest in real estate or to hold an interest in real estate for the benefit of another shall not be enforceable unless: a. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement, and the identity of the transferor and transferee are established in a writing signed by or on behalf of the party against whom enforcement is sought; or b. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement and the identity of the transferor and the transferee are proved by clear and convincing evidence. [ N.J.S.A. 25:1-13a and b; N.J.S.A. 25:1-13b.] The focus of an inquiry involving transferring or holding an interest in land should be whether the parties have made an agreement by which they intend to be bound. Morton v. 4 Orchard Land Trust, 180 N.J. 118, 126 (2004) (citing New Jersey Law Revision Commission, Report and Recommendations Relating to Writing Requirements for Real Estate Transactions, Brokerage Agreements and Suretyship Agreements 2 (1991)). "When an agreement has not been reduced to writing, a 'high standard of proof' must be met to establish intent. Specifically, 'the existence of an [oral] agreement between the parties as well as its essential terms must be proved by clear and convincing evidence." Ibid. Here, plaintiff claims he had an oral agreement with defendants. That alleged agreement first required the parties to purchase the Property as a group. Thus, the alleged agreement was an oral agreement to hold an interest in land, which does not have to be in writing. However, even viewing the facts in a light most favorable to plaintiff, we cannot find that an oral agreement existed here. There is no clear and convincing proof of the essential terms of the agreement or that defendants manifested an intent to enter into it. A reasonable trier of fact could not find that the parties agreed to be bound by an oral agreement based upon the facts of this case. Plaintiff's argument that summary judgment was improper because discovery was not complete is unavailing. Plaintiff does not point to anything that would change the outcome of this case. Minoia v. Kushner, 365 N.J. Super. 304, 307-08 (App Div.) (citing Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003)), certif. denied, 180 N.J. 354 (2004); Smith v. Estate of Kelly, 343 N.J. Super. 480, 502 (App. Div. 2001); Kaczorowska v. Nat'l Envelope Corp. - East, 342 N.J. Super. 580, 591 (App. Div. 2001).

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IV Even if we view the agreement as one to enter into a partnership, plaintiff's breach of contract claim still fails. N.J.S.A. 42:1A-10a defines a "partnership" as "the association of two or more persons to carry on as co-owners a business for profit . . . whether or not the persons intend to form a partnership." The burden to prove the existence of a partnership is on the one alleging it. Fenwick v. Unemployment Comp. Comm'n, 133 N.J.L. 295, 300 (E. & A. 1945) (citing Cornell v. Redrow, 60 N.J. Eq. 251, 252 (Ch. 1900)). "The test usually applied to determine whether a partnership exists is by ascertaining from the terms of the agreement whether any time has to lapse or any act remains to be done before the right to share profits accrues." De Vita v. Loprete, 75 N.J. Eq. 418, 421 (Ch. 1909), aff'd, 77 N.J. Eq. 533 (E. & A. 1910). Both partnerships and joint ventures may be implied from the parties' conduct. Kozlowski v. Kozlowski, 164 N.J. Super. 162, 171 (Ch. Div. 1978), aff'd, 80 N.J. 378 (1979). Factors used to determine whether a partnership exists include: evidence of an express contract of partnership between the parties; . . . joint ownership of partnership property; . . . an agreement for the sharing of profits as such; . . . proof of the acting of any one of the alleged partners for the others . . . authority for so acting relative to partnership affairs. [Hoffecker v. Austin, 82 N.J.L. 495, 497 (E. & A. 1911).] If insufficient evidence exists as to those factors, a partnership does not exist. Id. Here, there is no evidence of an express contract of partnership between the parties, no joint ownership of partnership property, no agreement for the sharing of profits, and no proof of the acting of any of the alleged partners for the other. Thus, no express or implied partnership ever existed between plaintiff and defendant. V Plaintiff next contends the totality of the parties' actions show they entered into a contract implied-in-fact. We disagree. A contract "must be sufficiently definite [in its terms] 'that the performance to be rendered by each party can be ascertained with reasonable certainty.'" Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (quoting W. Caldwell v. Caldwell, 26 N.J. 9, 24-25 (1958)). If "the parties do not agree to one or more essential terms," courts will "generally hold the alleged agreement unenforceable." Ibid. "A contract implied in fact consists of an obligation 'arising from mutual agreement and intent to promise but

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where the agreement and promise have not been made in words,' but are implied from the facts." Power-Matics, Inc. v. Ligotti, 79 N.J. Super. 294, 305 (App. Div. 1963) (quoting W. Caldwell, supra, 26 N.J. at 29). Silence is generally insufficient to constitute acceptance, but when "an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation," and if the offeree does not express "any objection to the offer's essential terms," courts will hold that the offeree has manifested assent to those terms. Weichert, supra, 128 N.J. at 436 (quoting Restatement (Second) of Contracts

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