       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 6, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2183
                         Lower Tribunal No. 10-16056
                             ________________


                  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.



                                              8
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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