[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 8, 2010
No. 10-10359 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 1:07-cv-21093-JLK
JOHN JAFFE,
BARBARA JAFFE,
Plaintiffs-Appellants,
versus
BANK OF AMERICA CORPORATION, N.A.,
AGRICULTURAL BANK OF CHINA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 8, 2010)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
John and Barbara Jaffe appeal the district court’s order granting Bank of
America, N.A.’s (BOA) motion for attorneys’ fees, costs, and expenses. On
appeal, the Jaffes contend the district court’s order was erroneous because: (1) the
Jaffes did not assent to the attorneys’ fees and costs provision of the Application
and Agreement governing the Letter of Credit, and (2) the Jaffes were not liable
for attorneys’ fees and costs under
Fla. Stat. § 675.111.1 After review, we affirm
the district court’s thorough and well-reasoned order.2
I.
In 2004, the Jaffes executed Bank of America’s Application and Agreement
for Standby Letter of Credit (Application and Agreement). On page two, the
Application and Agreement included a provision stating the Jaffes would:
[I]ndemnify and hold Bank of America harmless from and against . . .
all costs and expenses (including reasonable attorneys’ fees . . . and
1
The Jaffes do not raise any substantive argument regarding the district court’s
conclusion that Agricultural Bank of China (ABC) is entitled to the proceeds of the posted
injunction bond of $150,000. This issue is deemed waived. See United States v. Flores,
572
F.3d 1254, 1265 n.3 (11th Cir. 2009). The Jaffes also do not contest the reasonableness of the
attorneys’ fees, costs, and expenses awarded to BOA. They did not contest reasonableness of
BOA’s fees and costs in the district court, either, despite numerous opportunities to do so. This
issue is also deemed waived. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc.,
561
F.3d 1298, 1303–04 (11th Cir. 2009).
2
We review a district court’s order of attorneys’ fees and costs for abuse of discretion,
reviewing questions of law de novo and findings of fact for clear error. Atlanta Journal &
Constitution v. City of Atlanta Dep’t of Aviation,
442 F.3d 1283, 1287 (11th Cir. 2006).
2
legal expenses) of all claims or legal proceedings arising out of the
issuance by Bank of America of the Letter of Credit . . . including,
without limitation, legal proceedings related to any court order,
injunction, or other process or decree seeking to restrain Bank of
America from paying any amount under the Letter of Credit.
On appeal, the Jaffes contend they did not assent to this provision on page two of
the three-page Application and Agreement. The Jaffes also contend any recovery
under this provision should be limited to BOA’s counterclaim for indemnification.
The district court’s finding that the Jaffes executed the Application and
Agreement, including the page containing the attorney’s fees provision, was not
clearly erroneous. See Anderson v. City of Bessemer City,
470 U.S. 564, 573–75
(1985) (stating under the clear error standard, a district court’s factual findings
must be upheld if its interpretation of the evidence is plausible). In making this
finding, the district court relied upon the parties’ Revised Joint Pretrial Stipulation
stating the Jaffes “executed an Application and Agreement for Standby Letter of
Credit, and are bound by its terms.” The district court also relied on the fact that
the Application and Agreement—including page two—was marked and admitted
into evidence at trial, without objection from the Jaffes. Moreover, “Mr. Jaffe
himself identified the exhibit as the application while on the stand.”
3
The district court also did not err in concluding all of the Jaffes’ claims
against BOA fell within the scope of the Application and Agreement’s provision
for attorneys’ fees, costs, and expenses. The provision is broadly worded,
encompassing “all costs and expenses . . . of all claims or legal proceedings arising
out of the issuance by Bank of America of the Letter of Credit . . . .” Here, all of
the claims asserted against BOA—which included an injunction to restrain BOA’s
payment of the Letter of Credit, an alleged breach of fiduciary duty, equitable
estoppel, and negligent misrepresentation—purported to arise from the issuance of
the Letter of Credit or constituted legal proceedings relating to the Jaffes’ attempt
to enjoin BOA from paying the Letter of Credit. Accordingly, the district court
did not err in concluding BOA was entitled to an award of attorneys’ fees and
costs under the Application and Agreement.
II.
The district court also concluded BOA was entitled to attorneys’ fees and
litigation expenses under a separate source,
Fla. Stat. § 675.111(5). On appeal, the
Jaffes contend this finding was erroneous because they did not seek injunctive
relief against BOA under the Florida Statute.
Florida Statute § 675.111(5) states: “Reasonable attorney’s fees and other
expenses of litigation must be awarded to the prevailing party in an action in
4
which a remedy is sought under this chapter.” There is no dispute BOA was the
prevailing party. In both their original and amended complaints, the Jaffes
expressly sought an injunction against BOA pursuant to
Fla. Stat. § 675.109(2).
Under the plain language of
Fla. Stat. § 675.111(5), reasonable attorneys’ fees and
the expenses of litigation must be awarded to BOA, as the prevailing party,
because the Jaffes’ suit was an action in which a remedy was sought under chapter
675. Thus, the district court did not err in awarding reasonable attorneys’ fees and
litigation expenses to BOA, the prevailing party, under
Fla. Stat. § 675.111(5).3
AFFIRMED.
3
The Jaffes also contend any recovery under
Fla. Stat. § 675.111 would be limited to
their claim for injunctive relief. We need not consider this issue, as BOA is entitled to attorneys’
fees on the Jaffes’ other claims under the Application and Agreement.
5
