Big-name South Florida real estate brokerage Esslinger-Wooten-Maxwell Inc. lost its fight for a commission on the sale of a 9-acre school site.

EWM, based in Coral Gables, argued the Lones family owed the brokerage a 6% commission for the lease and sale of its property, which became Somerset Academy Bay Middle School, a public charter school in Miami's Kendall neighborhood.

The Third District Court of Appeal disagreed Wednesday and upheld the trial court's summary judgment in favor of the seller, the Lones Family LP.

The appellate panel rejected EWM's arguments that it introduced the buyers to the Loneses and was entitled to the fee under the state procuring cause doctrine.

EWM appellate attorneys Lauri Waldman Ross and Theresa Girten of Ross & Girten declined comment. Pete DeMahy of DeMahy Labrador Drake & Cabeza, who represented EWM in Miami-Dade Circuit Court was in trial and had no comment.

The Lones family attorney Henry Marinello at trial court said this was a long, hard-fought battle to prove EWM wasn't entitled to a commission.

"The courts were very clear that we were on the right side of the battle," he said.

Hunter & Lynch attorney Christopher Lynch and Law Offices of Victor K. Rones attorney Victor Rones represented the Lones family in the appeal.

The Lones family and EWM signed a one-year contract in January 2010 for EWM to lease or sell the property on behalf of the family for a 6% commission on the gross deal value. The agreement included protection for EWM covering the commission if a deal closes within a year of the agreement's expiration and the buyer is someone EWM brought in.

The property includes the school, a 9-acre vacant lot and a single-family home at 9500 and 9790 SW 97th Ave.

During the contract, EWM found potential buyers, brothers Ignacio and Fernando Zulueta, but no deal closed.

In June 2013 after the contract and one-year protection clause expired, the Lones family leased the property to Somerset Academy Inc., which purchased it in 2017.

Miami-Dade County deed and appraiser records show Somerset Academy bought the school site and adjacent property for $2.65 million. Records list the home at 9790 SW 97th Ave. in the name of the Lones family.

EWM sued Lones Family LP and family members Lee Lones and Judy Lones for breach of contract, arguing the Zuluetas and Somerset essentially are the same buyers. EWM said it was purposefully excluded from the deal to get out of the commission payment.

EWM also argued the procuring cause doctrine covered the commission because it was the one to  introduce the Loneses and the Zuluetas.

The Loneses countersued EWM and filed a third-part complaint against the family's broker at the time the Somerset deal closed, World Business Brokers Inc., which was paid a 7.5% commission. Because EWM was claiming an entitlement to this commission, the Lones family had to bring in WBB as EWM would have had to go after WBB  for the fee, Marinello said. WBB turned around to sue EWM and the Loneses.

The trial court dismissed all of these claims once it determined EWM is owed no commission and the appellate panel affirmed this.

Although EWM submitted evidence showing the Zuluetas once were on the Somerset board, the brothers hadn't been on the board since 2005 and didn't own the corporation.

The three-judge panel agreed with Ruiz that the procuring cause doctrine doesn't apply because the two sides had a special contract with its own provisions and protections for EWM.

"This exclusive right of sale contract was for an express period of twelve months and contained a twelve-month protection provision to commence upon expiration of the listing period. EWM contends there is no evidence that the parties intended to supersede the procuring cause doctrine by writing a twelve-month protection period into their agreement," Judge Monica Gordo wrote for the unanimous panel. "Yet, by its terms, the agreement explicitly limited EWM's right to recover commission for any sale or lease of the property for a specified period."

Judges Thomas Logue and Edwin Scales III concurred.

They also upheld the trial court's conclusion that the lease and sale of the property happened after both EWM's contract and one-year protection period expired to exclude it from a commission.

"We decline to apply this equitable doctrine to a sale that was effectuated six years after the expiration of the protection period, where there is no evidence of a deliberate delay, where there was an intervening broker, and where the ultimate buyer was a completely different entity," Gordo wrote.

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