Entitlement to a brokerage fee from a commercial lease; Exclusive listing agreement (ELA); Third-party beneficiary cooperating broker; “Any”; “Assistance”; “Cooperate in good faith”; Contractual or common-law indemnification; Provision barring indemnification based on “gross negligence or willful misconduct”; Attorney fees; Whether filing a separate suit was necessary; Pransky v Falcon Group, Inc; Fleet Bus Credit v Krapohl Ford Lincoln Mercury Co; The Dufresne Spencer Group, LLC (DSG); Letter of intent (LOI)

In this dispute over entitlement to a brokerage fee from a commercial lease, the court held that plaintiff-Colliers was a third-party beneficiary cooperating broker entitled to a commission under the contract at issue (the ELA). It also concluded the trial court did not err in finding that defendant-Signature Associates “failed to cooperate in good faith with Colliers.” Further, Signature and defendant-14 Mack were not entitled to contractual or common-law indemnification by defendant-DSG. Finally, the trial court did not err in denying DSG’s motion for attorney fees where DSG did not sue to enforce the contractual attorney fee provision. Thus, in these consolidated appeals the court affirmed the trial court’s orders granting Colliers partial summary disposition and denying DSG attorney fees. “Under the ELA, 14 Mack undertook the promise to directly pay a leasing commission to outside brokers who assisted Signature in procuring a lease for 14 Mack. The parties do not dispute that Colliers was the outside broker used by DSG, at least during the Suite 100 negotiations.” Thus, it qualified “as an intended third-party beneficiary of the ELA so long as it assisted Signature in procuring ‘any lease.’” There was no dispute “that Signature was ultimately able to ‘procure’ a lease with DSG for Suite 500.” And if Colliers assisted Signature in procuring “any lease in some way, it is entitled to a commission, regardless of the fact that DSG terminated Colliers before negotiating the Suite 500 lease directly. As the trial court noted, Colliers initiated the negotiations for the Suite 100 lease and introduced the parties.” The court next found that “Signature’s silence allowed 14 Mack to remove Colliers from the LOI—which also allowed it to claim a higher commission than it was entitled—constituted a failure to act honestly and in accordance with its obligations under the ELA.” Contractual indemnification was barred under the ELA “if the party seeking it caused the damages through either gross negligence or willful misconduct.” The court concluded that as both 14 Mack and Signature could “be said to have engaged in gross negligence and willful misconduct,” neither was entitled to contractual indemnification. Their common-law indemnification claim failed for the same reasons.