Third District Court of Appeal
State of Florida
Opinion filed August 6, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2183
Lower Tribunal No. 10-16056
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The Fallstaff Group, Inc., etc., et al.,
Appellants,
vs.
MPA Brickell Key, LLC, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.
Irv J. Lamel; Hicks, Porter, Ebenfeld & Stein and Dinah Stein and Shannon
Debus-Horn, for appellants.
Coffey Burlington and Daniel F. Blonsky, for appellee.
Before WELLS, EMAS and SCALES, JJ.
EMAS, J.
The Fallstaff Group, Inc. (“Fallstaff”) and Courvoisier Courts, LLC
(“Courvoisier”) appeal a final judgment, an amended final judgment, and two
orders entering partial summary judgment in favor of MPA Brickell Key, LLC
(“MPA”). For the reasons that follow, we affirm in part and reverse in part.
BACKGROUND
In November 2004, MPA entered into an agreement to sell real property on
Brickell Key to Fallstaff. A portion of the real property was subject to a Shared
Facilities Agreement (“SFA”) with a neighboring property owner, FBEC-Brickell
Key Centre, L.P. (“FBEC”). The SFA addressed, in part, apportionment of ad
valorem taxes for properties separately owned by MPA and FBEC, but billed by
the property appraiser under a single folio number. Pursuant to the SFA, MPA
paid the real property taxes billed under the single folio number—Folio No. 11—
and thereafter, MPA would invoice FBEC for its 1% share.
At the time of the proposed sale by MPA to Fallstaff, certain disputes
between Fallstaff and FBEC had arisen, which required a postponement of the
closing date. Accordingly, MPA and Fallstaff entered into a separate letter
agreement, which postponed the closing and further provided, in relevant part:
2. Reference is made to certain disputes between [MPA]
and Jones Lang LaSalle (“JLL”)1 concerning a certain
Shared Facilities Agreement (“the SFA”). [MPA] and
Fallstaff have agreed that [MPA] will, at Closing under
1 Jones Lang LaSalle was FBEC’s agent.
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the Agreement, pay Fallstaff $110,000 (including within
the $110,000, $10,000 for gate removal) in full payment
of all of [MPA’s] obligations with respect to these
disputes (the “SFA Dispute”) and all amounts owed by
[MPA] under the SFA through the date of the Closing.
In recognition of this fact, Fallstaff hereby agrees to
indemnify and hold harmless [MPA] and all of its equity
holders, officer, employees, agents and representatives
with respect to any liability under or in connection with
the SFA (including any liability with respect to legal fees
or court costs).
On the day of closing, Fallstaff assigned the sales agreement to an affiliate,
Courvoisier, and agreed that Fallstaff and Courvoisier would “be jointly and
severally liable under and pursuant to the Agreement.” The assignment further
provided that Courvoisier “shall perform all obligations, duties and liabilities of
[Fallstaff] under the Agreement.” At closing, Courvoisier received the $110,000
credit as set forth in the letter agreement, and the letter agreement was included in
the closing binder.
Unbeknownst to the parties, the tax appraiser had created a new tax folio in
2002 (“Folio No. 12”), splitting FBEC’s and MPA’s property from one another,
but the tax bills were never sent to MPA or FBEC. Thus, although its property was
being taxed separately from 2002 on, FBEC continued to pay its portion of the ad
valorem taxes on Folio No. 11 up to the date of the Fallstaff closing in 2004.
A few months after the closing, FBEC discovered the folio split when tax
certificates were issued against its property and, thereafter, demanded from MPA
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“$43,215.07 (the amount paid by [FBEC] to MPA), plus $7,593.56 (the amount of
costs penalties and interest paid).” In response, MPA, through counsel, notified
FBEC that it had no knowledge of the tax folio split, that the real property in
question was sold, and that all issues should be directed to the new owner,
Fallstaff. When Fallstaff also refused to reimburse FBEC, FBEC filed suit against
MPA.
In response, MPA filed a third-party complaint against Fallstaff, seeking
indemnification as provided under the terms of the letter agreement. The third
party complaint was dismissed without prejudice, pending the resolution of
FBEC’s suit against MPA. After discovery, FBEC acknowledged that MPA did
not have knowledge of the tax folio split when it invoiced FBEC for the 2002-2004
taxes, and MPA and FBEC settled their lawsuit for $17,000.
Following that settlement, MPA filed an amended complaint against
Fallstaff and Courvoisier, asserting a claim for contractual indemnification,
seeking the $17,000 MPA paid to FBEC, plus attorney’s fees and costs incurred by
MPA in that action (Count I). In the alternative, MPA asserted a claim against
Courvoisier for unjust enrichment based on the $110,000 credit Courvoisier
received at closing (Count II).
Fallstaff and Courvoisier moved for summary judgment as to the claim for
contractual indemnification. At the hearing, the trial court agreed with Fallstaff’s
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and Courvoisier’s assertion that, although MPA’s initial conduct in billing FBEC
for the 2002-2004 property taxes was an innocent mistake, once MPA confirmed
the tax folio split, MPA should have returned the wrongfully collected money to
FBEC. Instead, MPA forced FBEC to pursue an action against MPA to recoup the
wrongfully collected money, and as a result of this wrongful conduct, MPA was
not entitled to indemnity. As to Courvoisier, the trial court further ruled that
Courvoisier did not agree to indemnify MPA. Based on these rulings, the trial
court granted summary judgment in favor of Fallstaff and Courvoisier as to MPA’s
claim for contractual indemnification.
Courvoisier then moved for summary judgment as to MPA’s alternative
claim for unjust enrichment. At the hearing, the trial court ruled that Courvoisier
was not unjustly enriched, and therefore, granted summary judgment in favor of
Courvoisier. The trial court later entered final judgment in favor of Fallstaff and
Courvoisier, and MPA appealed.
On appeal, this court held that the trial court erred in granting summary
judgment in favor of Fallstaff and Courvoisier. MPA Brickell Key, LLC v.
Fallstaff Group, Inc., 92 So. 3d 879 (Fla. 3d DCA 2012). Specifically, we held
that (1) the indemnification provision in the letter agreement (including the
provision to indemnify MPA) was binding on Courvoisier; and (2) that MPA did
not act wrongfully in failing to tender the amounts set forth in FBEC’s demand
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letter or in defending the action because the amount demanded was more than the
amount FBEC paid MBA and because MPA believed it was no longer responsible
for “resolving any disputes, past or present, under the Shared Facilities
Agreement.” Accordingly, this court reversed the final judgment and remanded for
further proceedings, “including a determination of whether the claim FBEC and
MPA settled was covered by the indemnification provision in the letter
agreement.” Id. at 882.
On remand, MPA moved for partial summary judgment on liability,
asserting the settled claim was covered by the indemnification provision in the
letter agreement, and therefore, it was entitled to the $17,000 it paid to settle the
claims with FBEC, plus interest, as well as attorney’s fees and costs for its defense
of those claims for four years, and the attorney’s fees and costs for its prosecution
of the indemnity claim against Fallstaff and Courvoisier, at both the trial court and
the appellate court levels.
After a hearing on March 11, 2013, the court granted MPA’s motion for
partial summary judgment on liability, finding Fallstaff and Courvoisier had
breached the contract and were jointly and severally liable for the $17,000
settlement payment. It reserved ruling on other damages. On March 22, it entered
another order granting MPA’s revised motion for partial summary judgment on
liability, finding MPA was entitled to reasonable attorney’s fees and costs
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expended in the underlying FBEC litigation, in the instant indemnification action,
and in the prior appeal of the reversed summary judgment. The court entered a
final judgment on July 22, 2013, awarding MPA a total of $225,860.11, for which
Fallstaff and Courvoisier were held jointly and severally liable. On August 14,
2013, the court entered an amended final judgment, to correct arithmetical errors
and update interest calculations, awarding MPA $243,210.73.2 Fallstaff and
Courvoisier appealed, asserting the trial court erred in finding MPA was entitled to
indemnification and in awarding attorney’s fees to MPA.
ANALYSIS
We review de novo an order granting summary judgment. Volusia Cnty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). Further, although
we generally review a court’s ruling on entitlement to attorney’s fees for an abuse
of discretion, Ocean Club Cmty. Ass’n v. Curtis, 935 So. 2d 513 (Fla. 3d DCA
2006), where that ruling relies upon the interpretation of contractual provisions,
our standard of review is de novo. Kapila v. AT&T Wireless Servs., Inc., 973 So.
2d 600 (Fla. 3d DCA 2008).
As for MPA’s entitlement to indemnification, we hold that the trial court
correctly determined that MPA was entitled to indemnification from Fallstaff and
2 This amount was comprised of the $17,000 settlement amount paid by MPA to
FBEC, plus interest; attorney’s fees and costs in the FBEC litigation, plus interest;
attorney’s fees and costs in the prior appeal, plus interest; and attorney’s fees and
costs for the indemnification action, plus interest.
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Courvoisier under the terms of the letter agreement. The language of the letter
agreement unambiguously provides for indemnification for “any liability under or
in connection with the SFA (including any liability with respect to legal fees or
court costs).” Though it is undisputed that this particular dispute between MPA
and FBEC did not arise until after the letter agreement was formed, it is
nevertheless covered under the broad language (underlined above) employed by
the indemnification clause at issue. Thus, MPA was properly awarded the $17,000
it paid to settle FBEC’s claims against it.
As to the issue of attorney’s fees, the letter agreement provides that Fallstaff
(and Courvoisier) must indemnify MPA for “any liability under or in connection
with the SFA (including any liability with respect to legal fees or court costs.”
Fallstaff and Courvoisier assert that this language requires Fallstaff to indemnify
MPA only in the event MPA became liable for a third party’s legal fees or court
costs, not for MPA’s own legal fees and court costs. We do not read the language
of the letter agreement so narrowly.
We begin with the general rule in Florida that “an indemnitee is entitled to
recover, as part of his damages, reasonable attorney’s fees and reasonable and
proper legal costs and expenses, which he is compelled to pay as a result of suits
by or against him in reference to the matter against which he is indemnified.”
Am. & Foreign Ins. Co. v. Avis Rent-A-Car Sys. Inc., 401 So. 2d 855, 857 (Fla.
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1st DCA 1981). See also, Fla. Patient’s Compensation Fund v. Miller, 436 So. 2d
932 (Fla. 3d DCA 1983). Further, the unambiguous language of the letter
agreement included indemnification for legal fees and court costs incurred by MPA
in defending itself against the claims brought by FBEC “in connection with the
SFA.”
As for MPA’s entitlement to attorney’s fees and costs in the indemnification
action (and the first appeal) against Fallstaff and Courvoisier, however, we find
that the trial court erred in finding MPA was entitled to recover those fees and
costs. Although “attorney’s fees incurred in the defense of a claim indemnified
against are part of the damages allowable, . . . attorney’s fees incurred in
establishing the right to indemnification are not allowable.” Snider v. Continental
Ins. Co., 519 So. 2d 12, 13 (Fla. 5th DCA 1987) (citing United States Auto. Ass’n
v. Hartford Ins. Co., 468 So. 2d 545 (Fla. 5th DCA 1985)); Am. Home Assurance
Co. v. City of Opa Locka, 368 So. 2d 416 (Fla. 3d DCA 1979); Am. & Foreign Ins.
Co. v. Avis Rent-A-Car Sys., Inc., 401 So. 2d 855 (Fla. 1st DCA 1981). Further,
“[i]n the absence of a clear and unambiguous contractual provision or a statutory
right,” MPA is not entitled to attorney’s fees incurred in the indemnification
action. Sunshine Bottling Co. v. Tropicana Prods., Inc., 757 So. 2d 1231 (Fla. 3d
DCA 2000). Because the indemnification provision at issue does not by its terms
provide for MPA’s recovery of fees and costs incurred in seeking indemnification,
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we hold that the trial court erred in awarding those fees. We therefore reverse that
portion of the judgment, and affirm in all other respects.
Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
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