Pnc Bank, National Association v. Branch Banking and Trust Company ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 3, 2012
No. 10-13824
JOHN LEY
________________________
CLERK
D.C. Docket No. 8:08-cv-00611-SCB-TGW
PNC BANK, NATIONAL ASSOCIATION,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,
versus
COLONIAL BANK, N.A.,
llllllllllllllllllllllllllllllllllllllllDefendant,
BRANCH BANKING AND TRUST COMPANY,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 3, 2012)
Before TJOFLAT, MARTIN and HILL, Circuit Judges.
PER CURIAM:
PNC Bank (“PNC”) appeals the district court’s award of attorneys’ fees to
Branch Banking and Trust Company (“BB&T”) pursuant to a Participation
Agreement, governed by Florida law, which funded the construction of a
residential development. After reviewing the record and the parties’ briefs, we
affirm the district court.
After PNC incurred large losses, it filed suit against BB&T1 alleging breach
of contract and tort claims. PNC Bank v. Branch Banking & Trust Co., 704 F.
Supp. 2d 1229, 1238 (M.D. Fla. 2010). The district court found in the merits trial
that 1) PNC waived its breach of contract claim as to BB&T’s temporary
misadministration of the loan; 2) PNC suffered no damages as a result of BB&T’s
mistake; and 3) the Agreement did not prohibit the use of loan funds on certain
contested projects. Id. at 1239–40, 1243. The district court also rejected PNC’s
tort claims. Id. at 1242. This Court affirmed the district court in PNC Bank v.
Branch Banking & Trust, Co., No. 10-11571 (11th Cir. Feb. 2, 2011).
BB&T then filed a motion seeking attorneys’ fees under a provision of the
Participation Agreement, which permits the “prevailing party” in litigation arising
out of the contract “to recover reasonable attorneys’ fees and court costs should an
1
The predecessor to PNC, Mercantile Mortgage Corporation, and the
predecessor-in-interest to BB&T, Colonial Bank, entered into the Participation Agreement in
2006 to fund construction of a residential development, Venetian Bay. PNC and Mercantile
merged in 2007. After incurring substantial losses on the project, PNC filed suit against Colonial
in 2008. BB&T substituted as defendant in place of Colonial in 2009. In this opinion, “BB&T”
and “PNC” will be used interchangeably with their respective predecessor.
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attorney be employed to enforce the terms of this Agreement.” The district court
granted the motion, awarding BB&T $356,090.75 in fees. PNC appeals that order.
This Court reviews interpretation of an attorneys’ fee provision in a contract
de novo, while “subsidiary findings of fact” are reviewed for clear error. Dillard
v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000); see also Port-A-
Weld, Inc. v. Padula & Wadsworth Constr., Inc., 984 So. 2d 564, 568 (Fla. 4th
DCA 2008).
PNC argues that BB&T is not entitled to recover fees for its no-damages
and waiver defenses, because those defenses did not “enforce the terms of the
Agreement” as the contract requires. We reject this argument. First, as the parties
stipulated, damages are an element of a breach of contract claim under Florida
law. Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008).
Because PNC suffered no damages, there was no breach. See Covelli Family, L.P.
v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. 4th DCA 2008) (holding immaterial
breach did not constitute breach of contract). Thus, BB&T’s no-damages defense
clearly enforced its rights under the Agreement. Second, under Florida law,
waiver relinquishes a particular contractual right. Raymond James Fin. Servs, Inc.
v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005). From this it follows that BB&T’s
waiver defense enforced the altered terms of the Agreement as they existed after
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PNC’s waiver.
PNC argues further that BB&T cannot recover fees for its economic-loss-
doctrine defense because it was an extra-contractual defense. We cannot agree.
The economic loss doctrine “prevent[s] parties to a contract from circumventing
the allocation of losses set forth in the contract by bringing an action for economic
loss in tort.” Indemnity Ins. Co. of N. Amer. v. Amer. Aviation, Inc., 891 So. 2d
532, 536 (Fla. 2004). Thus, the very purpose of the economic loss doctrine is to
enforce a party’s contract rights.
Finally, PNC contends that BB&T cannot recover fees for any losing
arguments it made in defending against PNC’s claim that the Agreement
prohibited use of the loan funds on certain contested projects. Even though BB&T
ultimately prevailed on this claim, PNC urges that BB&T cannot recover as the
“prevailing party” for its unsuccessful arguments. We reject this contention as
well. Under Florida law, the prevailing party is identified by its success on the
overarching claims, not the individual arguments advanced. See Chodorow v.
Moore, 947 So. 2d 577, 579 (Fla. 4th DCA 2007).
AFFIRMED.
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