ORDER ON FEES
John O'Neil, Jr. Justice, Superior Court
A. Procedural Posture
Plaintiff BNY Mellon ("the Bank") filed this suit against Defendant RE/MAX Realty One ("Re/Max") alleging several claims arising out of Re/Max's refusal to pay the Bank escrowed monies. The court granted Summary Judgment to the Bank. The Law Court reversed, Bank of New York Mellon, N.A. v. Re/Max Realty One, 2014 ME 66, 91 A.3d 1059, holding that the Bank was in breach of contract and remanded to this court address the issue of attorney's fees.
The Bank owned property in York, Maine, and entered an agreement with Re/Max to retain, exclusively list, and sell the property. The underlying litigation concerned entitlement to certain escrow monies arising out of a breach of a purchase and sale agreement for the property by a potential buyer, Joseph Sullivan ("Sullivan"). The facts concerning that dispute need not be repeated here. Relevant to this matter are several contractual provisions that Re/Max asserts establish the Bank must pay Re/Max's attorney's fees for litigating this case.
Re/Max points to three different contractual provisions that purport to establish entitlement attorney's fees: (1) The Purchase and Sale Agreement between the Bank and Sullivan, (2) Earnest Money Authorization/Authorization Demand, also between the Bank and Sullivan, and (3) the Listing Agreement between Re/Max and the Bank.
The Listing Agreement provided: "Seller agrees to hold Agency harmless from any loss or damage that might result from authorizations provided in the Agreement." The Purchase and Sale Agreement provided:
In the event that the Agency is made a party to any lawsuit by virtue of acting as an escrow agent, Agency shall be entitled to recover reasonable attorney's fees and costs which shall be assessed as court costs in favor of the prevailing party.
The Authorization for Release of Earnest Money Deposit stated:
The undersigned hereby agree to hold each other, all real estate brokerage agencies involved in the transaction and their licensees harmless from any and all claims, suits, actions and damages arising out of such agreement.
A. The Law Court Decision Did Not Explicitly Limit this Court's Inquiry to Attorney's Fees Under the ...