Ship Construction & Funding Services (U.S.A.), Inc. v. Star Cruises PLC , 135 F. App'x 218 ( 2005 )

[DO NOT PUBLISH]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
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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
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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)
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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
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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
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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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