CHRISTOPHER D'ERRICO v. 50 PLEASANT REALTY, LLC, & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-249

CHRISTOPHER D'ERRICO

vs.

50 PLEASANT REALTY, LLC, & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Christopher D'Errico, filed a complaint in

the Superior Court against defendants 50 Pleasant Realty, LLC;

Ralph Di Girolamo, individually and as trustee of the Highland

Commons Realty Trust; and Richard Di Girolamo, individually and

as trustee of the Highland Commons Realty Trust, alleging that

the defendants failed to pay him a brokerage fee to which he was

entitled after he procured a buyer for the defendants' property.

The plaintiff's claims included breach of contract, fraud,

1Ralph DiGirolomo, individually and as trustee of the
Highland Commons Realty Trust, and Richard DiGirolamo,
individually and as trustee of the Highland Commons Realty
Trust. As is our custom, we spell the defendants' names as they
appear in the caption of the complaint. We note, however, that
the record otherwise reflects that the individual-trustee
defendants spell their last name "Di Girolamo."
unjust enrichment, and violation of G. L. c. 93A. The

defendants moved for summary judgment on all the plaintiff's

claims; the plaintiff did not oppose the defendants' motion, but

cross-moved for summary judgment on only his breach of contract

claim. A judge allowed the defendants' motion for summary

judgment 2 and denied the plaintiff's cross motion. On appeal,

the plaintiff argues that summary judgment in his favor should

have been allowed on the breach of contract claim because (1)

the defendants waived their "failure of consideration" defense;

(2) the defendants committed a breach of the brokerage agreement

where the agreement was a bilateral contract and the plaintiff

provided valid consideration; and (3) if the contract was

unilateral, the plaintiff performed the required act,

introducing a "lessee or prospective lessee or any other entity"

to the defendants, prior to any revocation. 3

2 The judge treated the plaintiff's cross motion as an
opposition to the defendants' motion for summary judgment on the
breach of contract claim and decided it on the merits; the judge
ordered summary judgment on the plaintiff's remaining claims
based on the plaintiff's failure to oppose the defendants'
motion as to those claims.

3 The plaintiff's contention that the defendants failed to
raise a lack of consideration as an affirmative defense to his
complaint, see Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974), and
as a result, were not entitled to summary judgment on his claims
of fraud and violation of G. L. c. 93A, was not raised in the
Superior Court and therefore waived. See Palmer v. Murphy, 42
Mass. App. Ct. 334, 338 (1997) ("Objections, issues, or claims -
- however meritorious -- that have not been raised at the trial
level are deemed generally to have been waived on appeal").

2
As to the denial of the plaintiff's motion for summary

judgment, "We review the denial of a summary judgment motion de

novo, to determine 'whether, viewing the evidence in the light

most favorable to the nonmoving party, all material facts have

been established and the moving party is entitled to a judgment

as a matter of law.'" Anderson v. Gloucester, 75 Mass. App. Ct.

429, 432 (2009), quoting Augat, Inc. v. Liberty Mut. Ins. Co.,

410 Mass. 117, 120 (1991). Because no material facts are

disputed, and the brokerage agreement was a bilateral contract

for which the plaintiff provided valid consideration and

performed sufficiently, we reverse so much of the judgment as

relates to the breach of contract claim and remand that claim

for entry of a new judgment in favor of the plaintiff and for an

assessment of damages consistent with this decision. We

otherwise affirm the judgment.

Background. The undisputed facts are as follows. In

August 2017, the plaintiff entered into a brokerage agreement

with the defendants entitled "Exclusive Right to Lease/Rent,"

(agreement) for a commercial property in Malden (property). 4 The

Because this claim "fits none of the usual exceptions to the
general rule that claims not raised below are waived on appeal,"
we do not address it. Id. at 338-339.

4 In the provisions of the agreement set forth below, the
terms "realtor" and "broker" refer to the plaintiff and the term
"lessor" refers to the defendants.

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agreement required the defendants to pay the plaintiff a

commission of four percent of the sale price if a "lessee or a

prospective lessee or any other entity should take title to the

deed or should purchase the property during the term of [the]

agreement or within any leasing situation; and all extensions

thereof," and such purchase "involv[ed] parties that the realtor

or his subagents or any other entity have introduced to the

property" or occurred "within 180 days after final termination

of [the] agreement or leasing situation end date derived from

[the] agreement between lessor and tenant or any other entity"

(emphasis added).

The agreement further required the defendants to refer "all

inquiries of brokers or others interested in" the property to

the plaintiff, and stated that "a commission is due and payable

in cash or certificate upon the lease signing or transfer of

title and/or interest in the property, by any means during the

term of this agreement or within 180 days (protective period)

after termination of agreement and all extensions thereof"

(emphasis added).

With respect to how the property would be marketed, the

agreement provided that

"As further consideration for the Lessor's or Seller's
listing said property with the Broker; the Broker agrees to
provide one or more of the following marketing methods at
Broker's sole discretion and expense, to be done as
indicated at no expense to the Lessor or Seller.

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"(a) Have a description of the exterior and interior
of the property taken, processed and forwarded to each
member of the MLS Property Information Network Inc.

"(b) Have a sign displayed on said property
advertising it for sale and or lease/Rent.

"(c) have the property advertised in a newspaper or
newspapers chosen by the Broker." (Emphasis added.).

The plaintiff at his own expense placed a sign on the

property advertising its availability, and listed the property

for sale in the Multiple Listing Service (MLS) and LoopNet real

estate databases for a price of $6 million. Dan Martignetti

(buyer) saw the plaintiff's LoopNet posting and went to see the

property. Upon arriving, the buyer called the telephone number

on a sign posted on the property, spoke to the plaintiff, and

the plaintiff came over to let him in and walk around the

property. The buyer proceeded to contact the plaintiff on two

other occasions to access the property. The buyer concluded

that he was interested in purchasing the property, researched

the property's owner, who was listed as defendant Richard Di

Girolamo, and without involving the plaintiff, purchased the

property in December 2017, during the term of the agreement, for

$5.9 million. This figure was $100,000 below the asking price

set by the plaintiff. After the sale was completed, the

plaintiff demanded payment of a four percent sales commission

5
and the defendants refused, instead offering a check, labeled

"Settlement," in the amount of $2,000. 5

Discussion. "We review a decision to grant summary

judgment de novo . . . ." Shea v. Cameron, 92 Mass. App. Ct.

731, 734 (2018). "The moving party is entitled to summary

judgment if . . . 'there is no material issue of fact in dispute

and the moving party is entitled to judgment as a matter of

law.'" Huang v. Ma, 491 Mass. 235, 239 (2023), quoting HSBC

Bank U.S.A., N.A. v. Morris, 490 Mass. 322, 326 (2022). See

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "On

appellate review of a judge's decision on cross motions for

summary judgment, we view the record in the light most favorable

to the party against whom the judge allowed summary

judgment . . . ." Marhefka v. Zoning Bd. of Appeals of Sutton,

79 Mass. App. Ct. 515, 516 (2011).

This is a straightforward case. The agreement, among other

things, provided that the plaintiff was entitled to a commission

on any sale of the property during the agreement's term to an

entity the plaintiff had introduced to the property. The

plaintiff clearly introduced the buyer to the property. An

affidavit by the buyer introduced by the defendants in support

of their case, states that he became aware of the property

5 A four percent commission on the purchase price would have
been $236,000.

6
through his wife seeing the LoopNet listing. He went to the

property, called the number on the sign, and the plaintiff came

and let him into the property to see it. The plaintiff also met

the buyer at the property on two other occasions to provide him

access to the building.

The defendants argue that there was no consideration for

their promise to pay a commission if an entity the plaintiff

introduced to the property purchased it during the term of the

agreement. But they focus only on the single paragraph in which

they promised to pay a commission, which does not state any

obligation of the plaintiff. But outside of that paragraph, the

agreement included many promises by the plaintiff, including a

promise to advertise the property, which –- even leaving aside

the LoopNet listing discussed below –- the plaintiff did, at his

own expense, by posting the sign at the property through which

the buyer initially contacted him.

The defendants argue that the plaintiff was not authorized

to post a listing for the sale, rather than the lease, of the

property. To begin with, such authorization is irrelevant. The

plaintiff is entitled to a commission on the sale of the

property to anyone to whom he introduced the property during the

term of the agreement. The buyer is within that category. The

agreement contains no restriction based on the method by which

the plaintiff finds the ultimate purchaser. Nor, if the

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defendants objected to the listing by which the plaintiff

introduced the buyer to the property, were they required to sell

it to him; if they had not, it would have been just as though

the listing by which the buyer heard of the property had never

been posted, and no commission could be due.

In any event, we think the agreement did authorize

placement of the LoopNet listing. The agreement specifically

required the plaintiff "to advertise the property and submit it

to the members of the MLS Property Information Network Inc."

Given the express authorization of signage advertising the

property "for sale and/or lease," we think the LoopNet listing

amounts to an advertisement of the property within the meaning

of the agreement. 6

Although this suffices to resolve the case, the plaintiff

also contends that the agreement to sell the property was

exclusive. He argues that by entering into an exclusive

agreement to market the defendants' property in exchange for a

commission upon the property's sale, he provided valid

consideration to form a bilateral contract, and that his

introduction of the property to the buyer constituted sufficient

6 The defendants also argue that no one at the plaintiff's
brokerage company had a broker's license at the time of the
property's sale. The operative time, however, is the time that
the introduction was made, at which point it is undisputed that
the plaintiff had a broker's license.

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performance to entitle him to the promised commission. In

contrast, the defendants maintain that the agreement was merely

a unilateral contract, revocable at their discretion as property

owners, and therefore did not obligate them to pay a commission.

We agree with the plaintiff’s position.

A real estate broker is entitled to a commission if he is

the "efficient or predominating cause of a sale of the

property," Bump v. Robbins, 24 Mass. App. Ct. 296, 303 (1987),

unless the brokerage contract contains other terms. If there is

no consideration, a brokerage agreement constitutes a unilateral

promise to pay a commission if the property is sold during the

stated term; such a promise may be revoked prior to a sale by

the broker through a sale by the owner. See id. at 304. An

agreement for an exclusive brokerage, however, "if supported by

consideration, . . . is bilateral and irrevocable during its

stated term." Id. at 303-304.

Here, it was undisputed that the plaintiff agreed to

undertake affirmative efforts, including advertising the

property and submitting it to an online real estate database, to

secure a tenant for the property. In doing so, the plaintiff

provided adequate consideration to support the conclusion that

he had an exclusive brokerage agreement with the defendants to

market the property. See Samuel Nichols, Inc. v. Molway, 25

Mass. App. Ct. 913, 913 (1987) (finding a valid exclusive

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brokerage agreement where broker made "enforceable promise which

bound it to expend efforts on the property owner's behalf").

The plaintiff's affirmative promise to market the property

distinguishes this case from others where no consideration was

found when a party was merely a "passive recipient" of the grant

of an exclusive agency. See, e.g., Boston Capital Funding, LLC

v. BEK Winchester Winning Farm LLC, 103 Mass. App. 573, 578-579

(2023) (no consideration, and thus unilateral contract, where

party "did not make any promises regarding what it would do to

procure the equity, and it could have entirely forgone the

opportunity to procure the equity and secure the commission").

Further, the defendants do not cite any authority to support

their contention that separate consideration is required to make

the exclusive brokerage clause irrevocable.

Because the parties' agreement was supported by

consideration, it was a bilateral contract and the defendants

could not revoke the agreement by selling the property to a

third party within the exclusive brokerage time period. 7 See

Bump, 24 Mass. App. Ct. at 303-304 ("if supported by

7 Assuming arguendo that the plaintiff did not provide
adequate consideration for the right to an exclusive brokerage,
and the brokerage agreement here was a unilateral contract, the
plaintiff still performed prior to the defendants' sale of the
property by introducing the buyer to the property. Thus, the
agreement was not revoked by the defendants' direct sale of the
property to the buyer. See Bump, 24 Mass. App. Ct. at 304.

10
consideration, an agreement for an exclusive brokerage is

bilateral and irrevocable during its stated term"). The

plaintiff undertook significant efforts to market the property

as required by the agreement within the exclusive brokerage time

period. The plaintiff advertised the property online with an

asking price that was within two percent of the eventual

purchase price. The plaintiff posted a sign on the property

indicating its availability, which the buyer relied on in

contacting the plaintiff to view the property. The plaintiff

also met the buyer at the property multiple times to allow the

buyer to access and evaluate his eventual purchase. When viewed

in the light most favorable to the plaintiff, the plaintiff's

efforts "introduced" the buyer to the property as required by

the agreement and thus constituted sufficient performance.

Compare Upper Cape Realty Corp. v. Morris, 53 Mass. App. 53, 59

(2001) (plaintiff "introduced" buyer to property, and thus

entitled to commission under exclusive brokerage agreement,

where plaintiff's "for sale" sign alerted buyer to property and

buyer contacted seller directly). Therefore, by failing to pay

the plaintiff a commission of four percent of the sale price, as

the agreement required, the defendants committed a breach of the

brokerage agreement.

Conclusion. We affirm the entry of summary judgment for

the defendants on the plaintiff's claims for fraud, unjust

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enrichment, and violation of G. L. c. 93A. We reverse the

summary judgment for the defendants on the breach of contract

claim and remand the case to the Superior Court for further

proceedings consistent with this decision.

So ordered.

By the Court (Rubin, Hand &
Smyth, JJ. 8),

Clerk

Entered: November 17, 2025.

8 The panelists are listed in order of seniority.

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