Jeanette Katherine Succar v. Safra National Bank , 237 F. App'x 526 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 14, 2007
No. 06-12144
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-21585-CV-PCH
JEANETTE KATHERINE SUCCAR SUCCAR,
Plaintiff-Appellant,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
No. 06-12145
________________________
D. C. Docket No. 03-21581-CV-PCH
MANUEL BEHAR FRYDLEWSKI,
JESSICA BENDERMAN WAINSENKER,
Plaintiffs-Appellants,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
No. 06-12146
________________________
D. C. Docket No. 03-21582-CV-HUCK
INMOBILIARIA NATANIA DE LIMA, S.C.R.L.,
Plaintiff-Appellant,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
No. 06-12147
________________________
D. C. Docket No. 03-21584-CV-HUCK
EDUARDO DE LAS CASAS,
MARIA ISABEL DE LAS CASAS,
2
Plaintiffs-Appellants,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
No. 06-12148
________________________
D. C. Docket No. 03-21586-CV-HUCK
GERALD COOKLIN ZIMMERMAN,
MARIA ALIDA COOKLIN,
Plaintiffs-Appellants,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
No. 06-12149
________________________
D. C. Docket No. 02-23377-CV-PCH
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MANUAL BEHAR FRYDLEWSKI,
et al.,
Plaintiffs,
ALDO FERNANDO KAHAN NOVOA,
GUSTAVO KAHAN NOVOA,
Plaintiffs-Appellants,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
No. 06-12150
________________________
D. C. Docket No. 03-21583-CV-PCH
LUIS JOAQUIN CARNEIRO,
Plaintiff-Appellant,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
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________________________
No. 06-12151
________________________
D. C. Docket No. 03-21587-CV-PCH
GILLIAN MENDIZABAL SEVILLA,
ENRIQUE MENDIZABAL RAIG,
Plaintiffs-Appellants,
versus
SAFRA NATIONAL BANK OF NEW YORK,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 14, 2007)
Before ANDERSON, MARCUS and COX, Circuit Judges.
PER CURIAM:
This is the second time that this case has these consolidated cases have come
before this Court. In the first appeal, we affirmed the district court’s grant of
summary judgment to Safra National Bank. Back in the district court, Safra sought
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attorney’s fees, which the district court awarded, including in the award fees for all
of the work done below. The Appellants appeal both of these orders, arguing that
the authorizing papers between the parties do not support the award of fees and that
even if they do, the fee award should not include work done on claims that are now
pending in state court, having been dismissed by the district court before they were
litigated.
Under Florida law, a “contractual attorney's fee provision must be strictly
construed.” B&H Constr. & Supply Co. v. District Bd. of Trustees of Tallahassee
Cmty. Coll., Fla., 542 So.2d 382, 387 (Fla. 4th Dist.Ct.App. 1989). The Fourth
District extensively examined the Florida Supreme Court’s line of cases holding
that contracts for attorney’s fees must be strictly construed. Sholkoff v. Boca
Raton Community Hosp., 693 So.2d 1114 (Fla. 4th Dist.Ct.App. 1989). The court
concluded that strict construction meant that “the parties must manifest in some
clear way an agreement to indemnify the other for attorney’s fees for a specific
matter.” Id. at 1118.
Florida courts have held that indemnification clauses similar to those in the
instant case apply only to claims brought by third parties, and not to suits between
the parties to the indemnification contract. Thus, where an indemnification clause
provides indemnity including attorney’s fees and would seem to apply not only to
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claims by third parties but also to suits between the parties, the Florida courts hold
that the indemnification clause applies only to claims by third parties if, with
respect to suits between the parties, the attorney’s fees provision is not limited to
prevailing parties.
The first of these cases is Century Village v. Chatham Condominium
Associations, 387 So.2d 523 (Fla. 4th Dist.Ct.App. 1980). There, the
indemnification provision held the Lessor harmless from liability against “any and
all claims” made against the Lessor arising out of the lease contract and awarding
any sums owed and attorney’s fees to the Lessor should it have to defend any
action. Id. at 523. The court held that the Lessor, who was sued by the Lessee and
had the suit dismissed,1 was not entitled to attorney’s fees under that
indemnification clause. The court held that it was “quite obvious” that the clause
was not intended to apply to actions between the parties but rather that it was to
apply to actions by third parties. Id. at 524. Specifically, the court stated:
Accepting the lessor's contention would amount to accepting the
incongruous theory that although the [Lessees] may be successful in
their litigation, they would nevertheless have to satisfy their own
judgment in addition to paying the lessor's costs.
Id.1
The appellate court had reversed the dismissal but the court did not cite that as part of
its reasoning for rejecting the claim for attorney’s fees.
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The Florida Supreme Court adopted the rule from Century Village in
Penthouse North Association v. Lombardi, 461 So.2d 1350 (Fla. 1985). There, the
Association sued its directors but the trial court dismissed the suit. The supreme
court rejected the directors’ request for attorney’s fees, explicitly adopting the
reasoning of the court in Century Village. 460 So.2d at 1353. More recently, the
First District Court of Appeals denied attorney’s fees to a prevailing party because
the “indemnification clauses in the Lease Agreement d[id] not provide for an award
of attorney’s fees to the prevailing party in litigation between the contracting
parties.” Traylor Bros. v. Melvin, 776 So.2d 947, 948 (Fla. 1st Dist.Ct.App. 2000).
Both of the contractual provisions relied upon by Safra contain broad
indemnification clauses but no limitation to prevailing parties in suits between the
parties to the indemnification contract. The authorization letter from Safra to the
Appellants states, in relevant part:
we [the investors] agree to reimburse, indemnify and hold, you [Safra],
your employees, agents and assigns harmless from all liability. . .
claim, damage and expenses, including reasonable attorneys fees, that
may arise out from [sic] your performance under this agreement, or
arising from claims of third parties or from any taxes . . . which may
be due as a result of these transactions, governmental charges and
related expenses.
Similarly, the International Banking Terms and Conditions for Accounts, which the
Appellants agreed to abide by, provides:
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We shall have no responsibility or liability (either at the branch of
deposit or at any other office regardless of where located, including
the Bank’s head office) to you for any reduction in the deposit or
unavailability of funds due to restrictions imposed or actions taken by
any government, central bank or other fiscal, monetary or other
authority, de facto or demure [sic]. You must also reimburse us for
our costs and expenses, including legal fees, incurred in connection
with any actions or claims asserted against us arising out of or related
to the restrictions or actions described in the preceding sentence.
The two indemnification clauses here must be construed under Florida law to apply
only to claims by third parties, because neither clause limits the attorney’s fee
provision to the prevailing party in suits between the parties to the indemnification
contract.
At oral argument, Safra sought for the first time to find an exception to the
concept embodied in Penthouse and Century. Safra argued that the explicit
reference to claims of third parties in the second clause of the authorization letter
reflects a clear intent that the first clause must apply not only to claims of third
parties, but also to claims between the parties because without that, it would be
redundant with the other clauses. We reject Safra’s argument. The indemnification
can be separated into three clauses: (1) “we [the investors] agree to . . . indemnify .
. . you [Safra] . . . from all liability . . . including reasonable attorneys fees, that
may arise out from [sic] your performance under this agreement”; (2) “or arising
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from claims of third parties”; (3) “or from any taxes . . . governmental charges and
related expenses.” It is true that the first clause could be read to encompass both
claims by third parties as well as suits between the contracting parties. Because the
Florida case law discussed above in effect rejects the interpretation of the first
clause that would encompass suits between the contracting parties because it lacks
a prevailing party clause, it is also true that the remaining aspect of the first clause
is redundant with the second clause. However, the third clause also refers to claims
by a third party, i.e., the government, and therefore is also redundant. The drafter
of the instant document obviously was not averse to redundancy. In any event,
under the strict construction applied by Florida courts to attorney’s fees provisions,
we readily conclude that there is no clear and manifest intention that appellants
should indemnify Safra for attorney’s fees in these consolidated cases.2
Accordingly, the judgments of the district court are reversed.
REVERSED.
2
Because no attorney’s fees at all are due to be paid to Safra in these cases, we
need not address the other argument asserted o
n appeal.
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