BC COMPLIANCE GROUP, LLC VS. ROSEN SEYMOUR SHAPSS MARTIN & COMPANY, LLP (L-2675-13, MONMOUTH COUNTY AND STATEWIDE)
A-1107-15T3
| N.J. Super. Ct. App. Div. | Oct 3, 2017Background
- RSSM (accounting firm) contracted BCCG (contract-compliance consultant) in 2006 to audit RSSM's real estate lease expenses; fee was 50% of recovered benefits per the Real Estate Accounting Agreement.
- BCCG's 2007 audit reported $364,000 in overpayments to landlord RFR; RFR rejected the audit findings and declined to issue credits.
- In 2011 RSSM negotiated a lease extension with RFR that included renovations, rent abatement, a new base year producing rent savings, and a general release of prior claims against RFR.
- BCCG contended those lease concessions were benefits derived from its audit and demanded $182,238.77 (50%); RSSM refused and argued the lease terms reflected market negotiations unrelated to BCCG’s work.
- RSSM moved for summary judgment; trial judge (Gummer) denied the motion, finding genuine issues of material fact as to whether RSSM received benefits traceable to BCCG’s audit and whether RSSM breached the fee agreement.
- RSSM’s reconsideration included an affidavit from RFR’s co-founder denying knowledge of the audit; the judge again denied reconsideration, and a jury later returned a verdict for BCCG. This appeal challenges the interlocutory denial of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment should be granted on breach of contract for unpaid fee | BCCG: Lease amendments and release reflect benefits resulting from BCCG’s audit, so fee is due per contract | RSSM: No admissible evidence that RFR’s lease concessions were caused by BCCG’s audit; any benefits were from independent market negotiations | Denied — factual dispute exists whether lease benefits derived from BCCG’s work; jury must decide credibility and causation |
| Whether expert testimony was required to prove causation/benefit | BCCG: Contract language and undisputed benefit amounts make expert testimony unnecessary; presumption that benefits flowed from BCCG’s efforts | RSSM: Causation and linkage to contract benefits require expert proof | Denied — judge found expert not required given contract terms and proof presented |
| Whether affidavits showing landlord's lack of knowledge defeat BCCG’s claim | BCCG: Evidence shows landlord was aware of audit; credibility is a jury issue | RSSM: Affidavit from RFR signer (Rosen) says he didn’t know of audit when signing; this negates benefit causation | Denied — judge found Rosen’s affidavit created credibility issue for jury rather than entitlement to summary judgment |
| Whether evidentiary objections improperly influenced denial of summary judgment | BCCG: Record supports denial; objections did not change existence of material factual disputes | RSSM: Trial court relied on inadmissible/irrelevant evidence in denying the motion | Denied — appellate court found record supported existence of genuine factual disputes and affirmed |
Key Cases Cited
- Hart v. City of Jersey City, 308 N.J. Super. 487 (App. Div.) (denial of summary judgment is interlocutory)
- Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349 (App. Div.) (interlocutory orders preserved for appeal when identified)
- In re Carton, 48 N.J. 9 (1966) (requirements for preserving interlocutory orders in appeals)
- Synnex Corp. v. ADT Sec. Servs. Inc., 394 N.J. Super. 577 (App. Div.) (permitting review of identified interlocutory orders)
- Sikes v. Twp. of Rockaway, 269 N.J. Super. 463 (App. Div.) (declining review when ruling not identified in appeal)
- N.J. Office of Emp. Relations v. Commc'n Workers of Am., 154 N.J. 98 (1998) (court may raise jurisdictional defects sua sponte but should notify parties)