Third District Court of Appeal
State of Florida
Opinion filed October 4, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1547
Lower Tribunal No. 18-37446
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Stephen Hess, et al.,
Appellants,
vs.
PMG-S2 Sunny Isles, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
Quintana Portal Villalon, PLLC, J. Luis Quintana and Kirk Villalón;
Schlesinger Law Group, and Michael J. Schlesinger, for appellants.
Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Josh M. Rubens and
Philippe Lieberman; Samson Appellate Law, and Daniel M. Samson, for
appellee.
Before EMAS, HENDON and LOBREE, JJ.
EMAS, J.
INTRODUCTION
Appellants, Stephen Hess and Clearwater Beach Company, LLC,
plaintiffs below, appeal a final judgment awarding contractual prevailing party
attorney’s fees and costs to PMG-S2 Sunny Isles, LLC (PMG), the defendant
below.
Hess and Clearwater contend the trial court erred in awarding
attorneys’ fees and costs against them, asserting such an award is
inconsistent with the trial court’s finding that Hess and Clearwater lacked
standing to assert their claims of rescission and breach of contract against
PMG because Hess and Clearwater had assigned the underlying contracts
to other entities. In other words, Hess and Clearwater argue that the fee
award cannot stand where it is based on the same contract the trial court
already found Hess and Clearwater lacked standing to sue under. In the
same vein, Hess and Clearwater contend the trial court should have found
that PMG was judicially estopped from obtaining an award of attorneys’ fees
and costs against them where PMG successfully argued Hess and
Clearwater lacked standing to assert their claims for rescission and breach
of contract. We affirm, holding that the trial court correctly determined, under
the express terms of the agreements at issue, that Hess and Clearwater
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remained liable to PMG for its attorneys’ fees and costs, and properly
awarded those amounts against Hess and Clearwater, jointly and severally.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of real estate transactions involving pre-
construction condominium units. The relevant facts are set out in our prior
opinion, Hess v. PMG-S2 Sunny Isles, LLC, 349 So. 3d 547 (Fla. 3d DCA
2022) (Hess I):
In 2014, Stephen Hess visited Muse, a condominium located in
Miami-Dade being developed by PMG, where he reviewed
promotional materials and floor plans for prospective units. Hess,
and his company Clearwater, subsequently entered into
purchase agreements with PMG for the purchase and sale of
three pre-construction condominium units at Muse [The
Purchase Agreements]. Hess paid PMG $6.1 million in deposits
for the units.
...
In May 2018, Hess and Clearwater assigned their “rights, title,
interests and obligations” under the agreements [The
Assignment Agreement] to Muse 1901, Muse 2101 and Muse
2201 (the “Muse entities”). Notice of the assignments were sent
to PMG. Closing was scheduled for May 31, 2018, but the Muse
entities failed to timely close. In late June, PMG furnished the
Muse entities with formal written notice of default and terminated
the agreements.
In November 2018, Hess and Clearwater filed a complaint
against PMG for recission pursuant to sections 718.202 and
718.506, Florida Statutes, breach of contract and declaratory
judgment challenging the enforceability of the default damages
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clause in the agreements.[1] Following a motion by PMG, the trial
court dismissed the declaratory judgment action without
prejudice as the issue was not ripe because the units had not
been resold. Hess and Clearwater then filed an amended
complaint, including the Muse entities as co-plaintiffs and
reasserting the claims for recission and breach of contract only.
After initial discovery was conducted, both Hess and PMG filed
motions for summary judgment.
In March 2020, rather than proceeding to trial, the trial court
heard argument in support of the cross-motions and granted
PMG's motion for summary judgment finding Hess and
Clearwater lacked standing and the remaining claims were
unsupported. Hess and the Muse entities subsequently filed a
motion for reconsideration of the entry of summary judgment and
requested to amend their complaint to reassert their previous
claim regarding the calculation of the deposits because they
learned the issue had recently ripened as PMG resold at least
one of the units. The trial court subsequently denied the motion
for rehearing and motion to amend, entering final judgment in
PMG's favor.
Id. at 548-49 (emphasis added).
Importantly, the Assignment Agreement between Hess/Clearwater and
the Muse entities specifically provided:
Notwithstanding the Assignment by the Assignor [Hess and
Clearwater] to Assignee [the Muse entities], the Assignor shall
remain liable to Seller [PMG] under the terms and conditions
of the Purchase Agreement until the closing of the
transaction under the Purchase Agreement.
1
Hess and Clearwater sought the return of $6.1 million in deposits it paid to
PMG.
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(Emphasis added). It is undisputed that the Muse entities failed to close the
transaction under the Purchase Agreements.
In entering summary judgment in favor of PMG on Hess and
Clearwater’s claims for rescission and breach of contract, the trial court
determined that, because Hess and Clearwater assigned the Purchase
Agreements to the Muse entities, Hess and Clearwater lacked standing to
assert a claim for breach of contract or for rescission under sections 718.202
and 718.506, Florida Statutes (2018). The Assignment Agreement between
Hess/Clearwater and the Muse entities expressly provided that
Hess/Clearwater, as assignor, “does hereby assign, transfer and set over
onto the Assignee [the Muse entities] . . . all of Assignor’s right, title, interest
and obligations under that certain Purchase Agreement. . . .” The trial court
found, pursuant to this plain language, that the assignment of the Purchase
Agreements barred Hess’ and Clearwater’s claims.
In Hess I, we affirmed the trial court's entry of summary judgment in
favor of PMG on Hess’ claims for breach of contract and rescission.
Following remand from Hess I, the trial court proceeded to a
determination of the remaining issue of entitlement and amount of attorney’s
fees and costs to be awarded against Hess and in favor of PMG as the
prevailing party under the terms of the Purchase Contract. PMG filed its
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motion, and Hess filed a response in opposition, arguing that Hess’
assignment of the Purchase Agreements to the Muse entities precluded an
award of attorney’s fees and costs against Hess. The trial court granted
entitlement to attorney’s fees and costs in favor of PMG and against Hess
and Clearwater, ruling Hess and Clearwater are jointly and severally liable
for trial and appellate attorney’s fees and costs.
After conducting additional discovery, the parties stipulated that the
number of hours expended, and rates charged, by PMG’s counsel were
reasonable. Following a hearing, the trial court entered judgment in favor of
PMG and against Hess, Clearwater, and the Muse entities, jointly and
severally, for trial court fees, appellate court fees, costs and post-judgment
interest in the total sum of $507,500.00. Hess and Clearwater appeal this
final judgment.
STANDARD OF REVIEW
In Fallstaff Group, Inc. v. MPA Brickell Key, LLC, 143 So. 3d 1139,
1142-43 (Fla. 3d DCA 2014), this court explained the proper standard of
review:
[A]lthough 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).
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ANALYSIS AND DISCUSSION
Hess and Clearwater contend that the trial court erred in awarding
attorneys’ fees and costs where the trial court had previously determined
Hess and Clearwater lacked standing to sue under the Purchase
Agreements because of the assignment of those agreements to the Muse
entities. We find no merit in this argument.
The trial court’s award of attorney’s fees and costs against Hess and
Clearwater (as well as the Muse entities) was proper, notwithstanding its
earlier determination that Hess and Clearwater lacked standing to assert
contractual claims of rescission and breach of contract. The reason for this
can be found in the express terms of the Assignment Agreement between
Hess/Clearwater and the Muse entities, which provided:
Notwithstanding the Assignment by the Assignor [Hess and
Clearwater] to Assignee [the Muse entities], the Assignor shall
remain liable to Seller [PMG] under the terms and conditions of
the Purchase Agreement until the closing of the transaction
under the Purchase Agreement.
(Emphasis added).
It is undisputed that “the closing of the transaction under the Purchase
Agreement” never occurred. And because the closing never occurred, the
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Assignor (Hess and Clearwater) “remain[ed] liable to Seller [PMG] under the
terms and conditions of the Purchase Agreement.”
The terms and conditions of each Purchase Agreement, in turn,
provide that the prevailing party is entitled to an award of attorney’s fees and
costs:
In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to reasonable
attorneys’, paralegals and para-professionals fees and court
costs at all trial and appellate levels.
This express term of the Purchase Agreement—to which Hess and
Clearwater remained bound “[n]otwithstanding the Assignment of the
Purchase Agreement” to the Muse entities—meant that if the transaction
failed to close, and if PMG prevailed in the litigation under the Purchase
Agreement, Hess and Clearwater “shall remain liable” for payment of PMG’s
attorney’s fees and costs.
In light of the Assignment’s plain language, the case law relied upon
by Hess and Clearwater, see, e.g., Bank of New York Mellon Tr. Co., N.A.
v. Fitzgerald, 215 So. 3d 116, 119 (Fla. 3d DCA 2017) (“Section 57.105(7),
however, cannot transform a contract's unilateral fee provision into a
reciprocal obligation where, as here, no contract exists between the
parties.”); U.S. Bank, N.A. v. Raheb, 259 So. 3d 912, 917 (Fla. 3d DCA 2018)
(“Raheb did not prove at the hearing and there was no finding by the trial
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court that both Raheb and the Trust were parties to the note and mortgage.
Thus, Raheb is not entitled to fees here.”) is simply inapplicable. 2 We find
no merit in the remaining arguments raised by Hess and Clearwater.
CONCLUSION
Pursuant to the Assignment Agreement, Hess and Clearwater
“remain[ed] liable to [PMG] under the terms and conditions of the Purchase
Agreement until the closing of the transaction under the Purchase
Agreement.” Because the transaction Purchase Agreement failed to close,
and because the Purchase Agreement provided for attorneys’ fees and costs
to the prevailing party, the trial court correctly determined that Hess and
Clearwater were liable to PMG for attorneys’ fees and costs, and properly
awarded those amounts to PMG as the prevailing party in the underlying
action.
Affirmed.
2
In addition, we already rejected this argument in Hess I, when we issued
our order granting PMG’s motion for appellate attorneys’ fees on the
summary judgment issue. See Salta Inv., Inc. v. Silva, 584 So. 2d 172, 172
(Fla. 3d DCA 1991) (applying law of the case to order on fees: “[B]oth parties'
motions for attorney's fees made to this court were denied. This denial of
fees is conclusive as to that issue and controls as to the fees awarded in the
instant case.”); Langer v. Fels, 93 So. 3d 1069, 1071-72 (Fla. 4th DCA 2012)
(“Like Salta II, appellate attorney's fees in this case were denied during the
original appeal on the merits under the same statutory provisions that the
trial court determined would entitle Fels to a fee award at the trial level. As
such, we reverse the Fee Orders under consideration in this appeal.”)
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