                                                  [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT             FILED
                                                 U.S. COURT OF APPEALS
                      ________________________     ELEVENTH CIRCUIT
                                                       MAY 31, 2005
                                                    THOMAS K. KAHN
                            No. 04-12109
                                                         CLERK
                      ________________________

                D. C. Docket No. 01-00248-CV-KAM


SHIP CONSTRUCTION AND FUNDING SERVICES (U.S.A.), INC.,
d.b.a. Colbert Group,
JACQ. PIEROT, JR. & SONS, INC.,


                                                 Plaintiffs-Appellants,

                               versus

STAR CRUISES, PLC,


                                                 Defendant-Appellee.

                      ________________________

                            No. 04-12970
                      ________________________

                D. C. Docket No. 01-00248-CV-KAM


SHIP CONSTRUCTION AND FUNDING SERVICES (U.S.A.), INC.,
d.b.a. Colbert Group,
JACQ PIEROT, JR. & SONS, INC.,


                                                               Plaintiffs-Appellees,

                                      versus

STAR CRUISES PLC,


                                                              Defendant-Appellant.


                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                  (May 31, 2005)

Before DUBINA, PRYOR and RONEY, Circuit Judges.

PER CURIAM:

      Ship Construction and Funding Services, USA, Inc., and Jacq. Pierot Jr. &

Sons, Inc. (Ship Construction) appeal the grant of summary judgment in favor of

Star Cruises PLC. Ship Construction contends that genuine issues of material fact

existed regarding whether Ship Construction was a procuring cause of the joint

venture between Star and Carnival Cruise Lines and whether Star intended to pay

for the services of Ship Construction. In a consolidated appeal, Star appeals the



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denial of its motion for attorney’s fees under Fla. Stat. section 57.105. Star

contends that the district court abused its discretion when it refused to award

attorney’s fees to Star. We affirm both well-reasoned decisions of the district

court.

                                 I. BACKGROUND

         Ship Construction brought this action against Star and sought compensation

for Ship Construction’s alleged role in consummating a joint venture between Star

and Carnival to acquire jointly Norwegian Cruise Lines (NCL). Ship Construction

alleged that it conferred a benefit on Star by recommending the NCL joint venture

and fostering an environment in which Star and Carnival were able to form that

joint venture, which was ultimately abandoned. Ship Construction also alleged

that the joint venture lowered the stock price of NCL by removing Carnival from

the competition, and the lower stock price saved Star millions of dollars.

         The district court granted summary judgment to Star and found that there

“[was] not more than a scintilla of evidence that Plaintiffs’ efforts brought Star

and [Carnival] together for a joint venture worth over $1 billion.” The district

court denied Ship Construction’s motion to reconsider and held that the question

was whether Ship Construction conferred a benefit on Star, not simply whether

Star realized a benefit. Star then moved for attorney’s fees under Fla. Stat. section

                                          3
57.105, but the district court denied that motion. Ship Construction appealed the

summary judgment ruling of the district court, and Star appealed the denial of its

motion for attorney’s fees.

                         II. STANDARD OF REVIEW

      We review de novo a grant of summary judgment and view the evidence and

all inferences in the light most favorable to the party opposing the motion. Shaw

v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir. 2003). We review for

abuse of discretion the decision to award or deny attorney’s fees under Florida

law. McMahon v. Toto, 256 F.3d 1120, 1129 (11th Cir. 2001).

                                III. DISCUSSION

      Ship Construction argues that the district court failed to recognize that

genuine issues of material fact existed regarding whether Star intended to pay for

the services of Ship Construction and whether Ship Construction was a procuring

cause of the joint venture between Star and Carnival to acquire jointly NCL. Star

contends that the district court abused its discretion when it denied Star’s motion

for attorney’s fees. We address each of these contentions in turn.

                     A. Ship Construction Failed to Prove a
                       Contract Implied-in-Fact with Star

      Ship Construction alleged in its “quantum meruit” claim that a contract


                                         4
implied-in-fact existed with Star. Under Florida law, a contract implied-in-fact “is

one form of an enforceable contract; it is based on a tacit promise, one that is

inferred in whole or in part from the parties’ conduct, not solely from their words.”

Commerce P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383, 385-86 (Fla.

Dist. Ct. App. 1997) (en banc) (citations and quotation marks omitted). To prevail

on a contract implied-in-fact theory, Ship Construction was required to present

evidence that Star either requested brokerage services from Ship Construction

regarding the joint venture or that Star knew that services were being rendered and

both sides intended for compensation to be paid. See id.

      Ship Construction failed to establish either that it rendered services or that

Star requested or agreed to accept brokerage services pertaining to the NCL joint

venture. Ship Construction asserts that Colin Au Fuk-yu (Au), a principal of Star,

told the brokers that if they “were to present viable ideas for a business alliance

with [Carnival], Star would have no problem paying for them.” A careful review

of the record shows that this statement referred only to the June 1998 agreement

between Ship Construction and Star in which Ship Construction agreed to secure a

charter for the Superstar Virgo, a cruise ship then being built for Star.

      The 1998 agreement did not authorize or request Ship Construction to seek

a business arrangement between Star and Carnival other than the sale or charter of

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the Virgo or another Star vessel. Although Au stated that he would have no

problem paying Ship Construction if it came up with “other similar ideas from

Carnival,” he also stated that “to expect a blanket agreement for anything between

the two companies was beyond him . . . .” Au’s statement establishes merely that

Star was willing to pay for services rendered in connection with placing the Virgo

or another vessel with Carnival, not that Star wanted Ship Construction to arrange

a joint venture between itself and Carnival. Because a contract implied-in-fact is a

legal contract based on an unspoken agreement, id. at 385, and Ship Construction

presented no evidence from which a reasonable jury could find that an unspoken

agreement existed between the parties to provide brokerage services for the NCL

joint venture, the district court did not err when it granted summary judgment to

Star on this count.

                       B. Ship Construction Failed to Prove
                        That it Conferred a Benefit on Star

      Ship Construction asserted in its “unjust enrichment” claim that the joint

venture to acquire NCL never would have happened without Ship Construction’s

assistance, and the joint venture enabled Star to “reap the benefit of a

multi-million dollar acquisition cost savings.” To prevail under a theory of unjust

enrichment, or contract implied-in-law, Ship Construction had to prove that (1)



                                          6
Ship Construction conferred a benefit on Star; (2) Star had knowledge of the

benefit; (3) Star accepted or retained the benefit conferred; and (4) the

circumstances are such that it would be inequitable for Star to retain the benefit

without paying fair value for it. See id. at 386. Although Florida law allows for a

broker to recover under a theory of unjust enrichment if the broker was the

procuring factor in a transaction, Media Servs. Group, Inc. v. Bay Cities

Communications, Inc., 237 F.3d 1326, 1329 (11th Cir. 2001), Ship Construction

failed to establish that it was the procuring cause of the NCL joint venture.

      Ship Construction relies heavily upon a communication a few months

before the joint venture. In December 1999, Chris Ohlson of HSBC Shipbrokers,

a non-party, sent a written message to Colin Au and stated that “Carnival would be

interested in discussing with you an idea for both Star and [Carnival] to enter an

agreement with NCL.” That message also included the phone number for Howard

Frank, then-Chief Operating Officer of Carnival. It is from those two facts that

Ship Construction would have us infer that (1) Ship Construction actually

recommended that Star and Carnival jointly acquire NCL, and (2) Ship

Construction was the procuring cause of the NCL joint venture.

      The inferences regarding that communication that Ship Construction would

have us draw are unreasonable. We are not convinced that the message from

                                          7
Ohlson to Au recommended that Star and Carnival form a joint venture to acquire

NCL. Ohlson stated that Carnival was interested in an unspecified agreement with

NCL, but Ohlson did not mention a joint venture to acquire NCL. Even if Ship

Construction suggested a joint venture, we conclude that a vague suggestion by an

intermediary regarding a joint venture was insufficient as a matter of law to show

that Ship Construction was the procuring cause of the joint venture. Cf. Earnest &

Stewart, Inc. v. Codina, 732 So. 2d 364, 365-66 (Fla. Dist. Ct. App. 1999). Ship

Construction cannot reasonably contend that Star, which is a sophisticated entity

in the cruise ship industry, owes Ship Construction millions of dollars, under a

theory of unjust enrichment, because HSBC, which allegedly was working with

Ship Construction, communicated to Star one ambiguous statement about

Carnival’s interest in an agreement and provided Au with Frank’s telephone

number. Because Ship Construction failed to prove that it conferred a benefit on

Star, the district court did not err when it granted summary judgment to Star on

this count. Cf. Commerce P’ship, 695 So. 2d at 386.

           C. The District Court Did Not Abuse its Discretion When it
                   Denied Star’s Motion for Attorney’s Fees

      Star contends that the district court abused its discretion when it refused to

award attorney’s fees to Star. Florida law requires that a court “shall award a



                                          8
reasonable attorney’s fee to be paid to the prevailing party [in] a civil proceeding

or action in which the court finds that [a claim presented by the losing party was]

not supported by the material facts necessary to establish the claim . . . .” Fla. Stat

§ 57.105. Florida courts have interpreted this statute to require that a claim be

frivolous before attorney’s fees may be awarded. Wendy’s of N.E. Fla., Inc. v.

Vandergriff, 865 So. 2d 520, 523 (Fla. Dist. Ct. App. 2003).

      Ship Construction’s complaint failed, but it was not frivolous. After

extensive discovery, Ship Construction presented some evidence that it worked on

behalf of Star, although not enough evidence to prove the existence of a genuine

issue of material fact. The district court did not abuse its discretion when it

refused to award attorney’s fees to Star.

                                IV. CONCLUSION

      Ship Construction failed to show that Star agreed that Ship Construction

would provide brokerage services for the joint venture with NCL, and Ship

Construction failed to show that it was the procuring cause of the joint venture.

The district court also did not abuse its discretion when it refused to award

attorney’s fees to Star. Both judgments of the district court are

      AFFIRMED.




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