        Third District Court of Appeal
                                 State of Florida

                           Opinion filed August 13, 2014.
                                ________________

                            Nos. 3D13-773 and 13-55
                           Lower Tribunal No. 07-46943
                               ________________


                      Hillstone Restaurant Group, Inc.,
                                     Appellant,

                                         vs.

                       P.F. Chang’s China Bistro, Inc.,
                                      Appellee.


      Appeals from the Circuit Court for Miami-Dade County, Abby Cynamon,
Judge.

      Hinshaw & Culbertson and James H. Wyman, for appellant.

      McIntosh, Sawran & Cartaya and Michael J. Lynott and Kimberly J. Kanoff,
for appellee.


Before WELLS, SUAREZ, and EMAS, JJ.

             ON MOTION FOR REHEARING AND CLARIFICATION

      SUAREZ, J.

      We grant Appellee P.F. Chang’s China Bistro, Inc.’s Motion for

Clarification, withdraw our former opinion of May 21, 2014, and substitute the

following in its place. We deny rehearing or clarification in all other respects.
      Hillstone Restaurant Group, Inc. f/k/a Houston’s Restaurant, Inc.

(“Houston’s”), the landlord, appeals a summary judgment entered in favor of P. F.

Chang’s China Bistro Inc. (“P.F. Chang’s”), the tenant, holding that Houston’s had

a contractual duty to defend and indemnify P.F. Chang’s for damages resulting

from a lawsuit against both parties that arose out of a trip-and-fall on property

leased to P.F. Chang’s. Based on the facts of the trip-and-fall and the terms of the

parties’ lease, we find that Houston’s did not have a contractual duty to defend or

indemnify P. F. Chang’s and, therefore, reverse the summary judgment and the

attorney’s fee award and remand with instructions.

      In 2007, Sabena Beriy and Aron Beriy, her husband, (the “Beriys”) brought

suit against both P.F. Chang’s and Houston’s alleging that she fell on a “protruding

curb and/or unlevel and dangerous surface in the ingress/egress” of P.F. Chang’s.

The Beriys alleged negligence in the “care, design, maintenance, repair,

management, cleaning and/or operation” of the site. P.F. Chang’s and Houston’s

filed cross-claims against each other for indemnity based on the parties’ lease.1

      The trial court granted summary judgment for P.F. Chang’s, specifically

finding that “the subject curb where Ms. Beriy fell was located in the Common

Area in the Development. It was not located on P.F. Chang’s Premises.” The trial

court then found that Houston’s breached its contractual duty to defend and

indemnify and that P.F. Chang’s was entitled to recover its attorneys’ fees and


1 Following mediation between all parties, P.F. Chang’s settled the claims against
both P.F. Chang’s and Houston’s. Houston’s declined to participate in the
settlement.
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costs. The trial court entered final judgment and reserved jurisdiction to determine

the amount of attorney’s fees.      It later entered a separate final judgment for

attorney’s fees and costs incurred by P.F. Chang’s in defending the underlying suit

and litigating the cross-claims.    The two judgments are consolidated for the

purposes of this appeal.

      In granting P.F. Chang’s motion, the trial court appears to have confused the

word, “Premises,” as defined under the lease, with the word “premises” as defined

in a dictionary. The lease between the parties states:

             Landlord does hereby demise and lease to Tenant and
             Tenant does hereby take and hire from Landlord . . . that
             certain tract of land described on Exhibit ‘A’ . . . (the
             ‘Site’), together with all improvements . . . to be
             constructed by Landlord on the Site (the ‘Site
             Improvements’) and all appurtenances thereunto
             belonging (said Site, Site Improvements and
             appurtenances hereinafter collectively referred to as
             ‘Premises’).

Under that definition, the leased “Premises” incorporates the “Site” and the “Site

Improvements” which are defined in the lease. Additionally, Exhibit “A” to the

lease, entitled “Legal Description of the Premises,” identifies and defines a tract of

land referred to as “Parcel ‘C’.” Therefore, under the lease, the “Premises” is both

the “Site” and “Parcel C,” together with all Site Improvements and appurtenances

thereto.2


2 Exhibit “A” to the lease also identifies “Parcel C” as “a portion of Tract ‘A’” and
includes a map which shows “Parcel C” in relation to “Tract A,” and shows the
square footage and acreage of “Parcel C.” Exhibit “A-1” entitled “Site Plan of
Development, Dedicated Area and Tenant’s Monument Sign” contains drawing
showing the “Dedicated Area,” which parallels the map of “Parcel C.”
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      There is no dispute that Parcel “C” was the “Premises” leased to P.F.

Chang’s. There is also no dispute that the trip-and-fall occurred in Parcel “C.”

Thus, determination of the claims in this matter requires an analysis of which

entity, if any, is required to indemnify the other for claims relating to a trip-and-fall

in Parcel C.

      The Indemnification portion of the lease contains two indemnification

paragraphs. One is titled Indemnification by Landlord and the other is entitled

Indemnification by Tenant. Paragraph 11.2, “Indemnification by Landlord,” states:

               Landlord covenants and agrees to pay, defend, indemnify
               and save harmless Tenant from and against any and all
               liability, loss, damage, cost, expense (including without
               limitation all attorneys’ fees and expenses of Tenant),
               causes of action, suits, claims, demands or judgments of
               any nature whatsoever based upon, arising from or
               connected in any manner with (a) injury to or death of
               any person . . . occurring in or on any part of the
               Development other than the Premises, (b) the use, non-
               use, condition, possession, construction, operation,
               maintenance, management or occupation of any part of
               the Development other than the Premises…. (emphasis
               added).

That paragraph requires Houston’s to indemnify and hold P.F. Chang’s harmless

for any injury or construction defect which occurs on the “Development” but not if

it occurs on the “Premises” as defined in the Lease. As the trip-and-fall occurred

on Parcel C, which is coextensive with the “Premises,” Houston’s is not

contractually



                                           4
obligated to indemnify or pay any attorneys’ fees incurred by P.F. Chang’s in the

personal injury action brought by the Beriys.

      Conversely, paragraph 11.1, “Indemnification by Tenant,” states:

             Tenant covenants and agrees to pay, defend, indemnify
             and save harmless Landlord from and against any and all
             liability, loss, damage, cost, expense (including without
             limitation all attorneys’ fees and expenses of Landlord)
             causes of action, suits, claims, demands or judgments of
             any nature whatsoever based upon, arising from or
             connected in any manner with (a) injury to or the death of
             any person … occurring on the Premises during the
             Term, (b) the use, non-use, condition, possession,
             construction, operation, maintenance, management or
             occupation of the Premises or any part thereof . . ..

Under that paragraph, P.F. Chang’s is contractually obligated to indemnify

Houston’s for any claims arising from an injury occurring on the Premises.

Because it is undisputed that the injury occurred on Parcel C, P.F. Chang’s is, in

fact, obligated to indemnify Houston’s for the claim brought by the Beriys.

       Consistent with the trial court’s ruling, P.F. Chang’s also argues that the

location of the trip-and-fall was within the “Common Area” as defined by the

lease, rather than on its “Premises.” Paragraph 18.1 of the lease states that “The

‘Common Area’ is that area within the Development which is neither occupied by

building . . . nor devoted permanently to the exclusive use of a particular tenant . . .

.” Because the trip-and-fall was alleged to have occurred at the ingress or egress of

P.F. Chang’s, there is no merit in P.F. Chang’s contention that the area at issue was

not   “devoted    permanently”     to   the

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exclusive use of P.F. Chang’s. Moreover, Exhibit A-1 to the lease identifies Parcel

C as being P.F. Chang’s “Dedicated Area.” As such, Parcel C appears to have

been “devoted permanently” to P.F. Chang’s by the terms of the lease.

      P.F. Chang’s further argues that Houston’s was liable to indemnify it

because Exhibit B to the lease, entitled “Site Improvements” includes the

requirement that Houston’s “[d]esign and install all parking lots, driveways and

curbs within the entire Development up to the back of the curb adjoining Tenant’s

building.” That argument ignores that the “Premises” leased to P.F. Chang’s

includes the “Site Improvements.”3 It likewise ignores that paragraph 6.1 of the

lease states that “TENANT AGREES THAT TENANT IS LEASING THE

PREMISES ‘AS IS’, AND LANDLORD MAKES NO WARRANTIES,

EXPRESS OR IMPLIED, AS TO FITNESS, MERCHANTABILITY, USE OR

CONDITION OF THE PREMISES.” (capitalization in original). Where the lease

defines the leased “Premises” to include the “Site Improvements,” it is

disingenuous for P.F. Chang’s to argue that the curb over which Ms. Beriy

allegedly fell was not a part of its Premises under the lease.

      As to P.F. Chang’s claim for common law indemnity, we find that the trial

court erred in determining that Houston’s was at fault and that P.F. Chang’s was

wholly without fault given the terms of the lease and the lack of any factual

development that resulted from the settlement.



3As quoted above, paragraph 1.1 of the lease states “said Site, Site Improvements
and appurtenances hereinafter collectively referred to as ‘Premises.’”
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      Accordingly, we reverse the summary judgment and attorney’s fees award in

favor of P.F. Chang’s and remand with instructions for the trial court to enter

summary judgment in favor of Houston’s.

      Reversed and remanded.




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