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Silver Lake Office Plaza, LLC v. Lanard & Axilbund, Inc.

Superior Court of Delaware, New Castle

January 17, 2014

SILVER LAKE OFFICE PLAZA, LLC and CD REALTY ENTERPRISE DRIVE ASSOCIATES, LLC, Plaintiffs/Counterclaim Defendants,
v.
LANARD & AXILBUND, INC. d/b/a COLLIERS L&A, Defendant/Counterclaimant/ Third-Party Plaintiff,
v.
CD REALTY ADVISORS, INC. Third-Party Defendant.

Submitted: October 18, 2013

Upon Defendant Lanard & Axilbund, Inc. d/b/a Colliers L&A's "Motion to Dismiss Under the Doctrine of Forum Non Conveniens. "DENIED AS MOOT.

Upon Defendant Lanard & Axilbund, Inc. d/b/a Colliers L&A's "Alternative Motion for Judgment on the Pleadings." GRANTED.

Upon Plaintiffs Silver Lake Office Plaza, LLC and CD Realty Enterprise Drive Associates, LLC's Motion for Judgment on the Pleadings. DENIED.

Upon Third-Party Defendant CD Realty Advisors, Inc.'s Motion to Dismiss Third-Party Complaint. DENIED.

Joseph B. Cicero, Esquire and Stephanie S. Habelow, Esquire, Cousins Chipman & Brown, LLP, Wilmington, Delaware, Attorneys for Plaintiffs/Counterclaim Defendants and Third-Party Defendant.

Christopher P. Simon, Esquire and Tara M. DiRocco, Esquire, Cross & Simon, LLC, Wilmington, Delaware; Jonathan J. Bart, Esquire, Wilentz Goldman & Spitzer, P.A., Philadelphia, Pennsylvania, Attorneys for Defendant/Counterclaimant/Third-Party Plaintiff.

MEMORANDUM OPINION

Richard R. Cooch, R.J.

I. INTRODUCTION

This declaratory judgment action, and counterclaim also seeking a declaratory judgment, stems from a claim raised over two now-terminated Exclusive Agency Agreements (the "Agreements"). Lanard & Axilbund, Inc. d/b/a Colliers L&A ("Defendant") claims that it is entitled to continued commissions from these Agreements despite their termination. There are two issues before the Court. The first is whether, due to previous litigation in Pennsylvania, this claim should be dismissed under the doctrine of forum non conveniens. The second issue is whether, based on the stipulated facts set forth below, judgment on the pleadings should be granted to Silver Lake Office Plaza, LLC and CD Realty Enterprise Drive Associates, LLC ("Plaintiffs") or to Defendant as a matter of law, given the provisions of the Agreements which all parties agree is unambiguous.

For the reasons set forth below, Defendant's Motion to Dismiss Under the Doctrine of Forum Non Conveniens is DENIED AS MOOT. Defendant's Alternative Motion for Judgment on the Pleadings is GRANTED and Plaintiffs' Motion for Judgment on the Pleadings is DENIED. Third-Party Defendant CD Realty Advisors, Inc.'s ("Third-Party Defendant's") Motion to Dismiss Third-Party Complaint is DENIED.

II. STIPULATED PROCEDURAL HISTORY AND FACTUAL BACKGROUND

All parties in this case agreed to a stipulation of the procedural history and factual background that was submitted to the Court. That stipulation appears in toto below:

1. Silver Lake is a limited liability company organized under the laws of the State of Delaware. Silver Lake owns and operates the buildings located at the Silver Lake Office Plaza in Dover, Delaware.
2. Enterprise is a limited liability company organized under the laws of the State of Delaware. Enterprise owns and operates the buildings located at 100 Enterprise Drive, Enterprise Business Park, Kent County, Dover, Delaware.
3. CD Realty is a New Jersey corporation with offices in New Jersey and Philadelphia specializing in real estate investment and property management.
4. Colliers is a Pennsylvania corporation, with offices in Philadelphia and Wilmington. Colliers is a full-service commercial real estate firm serving primarily Eastern Pennsylvania, Southern New Jersey and Delaware. Colliers' registered agent for service of process in Delaware is The Corporation Trust Company located at 1209 Orange Street, Wilmington, Delaware 19801.
5. On April 26, 2005, Enterprise entered into an Exclusive Agency Agreement with Colliers (the "Enterprise Agreement") retaining Colliers as Enterprise's agent with the exclusive right to market for leasing the various buildings owned by Enterprise for a period of twelve months, unless renewed in writing. Don Berg, President of CD Realty, signed the Enterprise Agreement as an authorized signatory of the manager of Enterprise. Mr. Berg also signed the Silver Lake Agreement, below.
6. On the same day, April 26, 2005, Silver Lake entered into an Exclusive Agency Agreement with Colliers (the "Silver Lake Agreement"), retaining Colliers as Silver Lake's agent with the exclusive right to market for leasing the various buildings owned by Silver Lake for a period of twelve months, unless renewed in writing. The Silver Lake Agreement and the Enterprise Agreement contain virtually identical terms and collectively are referred to herein as the "Agreements." They are attached to the Complaint as Exhibits "A" and "B."
7. The Agreements contain twelve-month terms that commenced on April 26, 2005 and ended on April 26, 2006. Unless the terms of the Agreements expressly were extended in writing, they terminated upon the expiration of the original twelve-month term. The terms of the Agreements were not extended and therefore the Agreements terminated on April 26, 2006.
8. Pursuant to the terms of the Agreements, Plaintiffs agreed to pay Colliers certain brokerage commissions as set forth in Paragraph 3:
Upon the happening of an event of lease specified in Paragraph 3, whether by or through AGENT, OWNER, any other agent, broker, other person or entity, either during the term of this Agreement, or after the termination of this Agreement under the circumstances provided for in Paragraph 4, OWNER agrees to pay AGENT a commission as set forth below. For reference as to terminology, a 6-5-4-3 commission shall mean a commission equal to SIX PERCENT (6%) of the minimum rental for the first year of the term, plus FIVE PERCENT (5%) of the minimum rental for the second year of the term, plus FOUR PERCENT (4%) of the minimum rental for the third year of the term, and THREE PERCENT (3%) of the minimum rental for the balance of the term. A 3-2.5-2-1.5 commission shall mean as set forth above with only changes in the specified percentages. A "2.5%" commission shall mean TWO PERCENT (2%) of the ...

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