American University of the Caribbean, N v. V. Caritas Healthcare, Inc

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11406 SEPTEMBER 23, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:08-cv-20374-AJ
AMERICAN UNIVERSITY OF THE CARIBBEAN, N.V.,
a Netherlands Antilles company,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
CARITAS HEALTHCARE, INC.,
a New York corporation formerly known as
Caritas Healthcare Planning, Inc.,
WYCKOFF HEIGHTS MEDICAL CENTER,
a New York corporation,
BROOKLYN QUEENS HEALTHCARE, INC.,
a New York corporation,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 23, 2011)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Plaintiff American University of the Caribbean, N.V. (“AUC”) appeals from
final orders of the district court denying AUC’s motion for attorney’s fees and motion
for reconsideration of that denial. The district court denied AUC’s motions after
granting summary judgment in favor of AUC and against Defendants Wyckoff
Heights Medical Center (“Wyckoff”) and Brooklyn Queens Healthcare, Inc.
(“BQHC”), jointly and severally, in the amount of $4,915,948.75 plus interest, in a
breach of contract action arising out of a promissory note agreement (“the Note”)
lending money to Caritas Healthcare, Inc. (“Caritas”), a wholly owned subsidiary of
BQHC, which also operates Wyckoff. On appeal, AUC argues that the district court
erred in denying its motions because it failed to read the Note as a whole. After
careful review, we affirm.
We review de novo a district court’s interpretation of a contract’s attorney’s fee
provision. Frankenmuth Mut. Ins. Co. v. Escambia Cnty., 289 F.3d 723, 728 (11th
Cir. 2002). When attorney’s fees are authorized, we review the district court’s
decision to grant or deny them for abuse of discretion. Davis v. Nat’l Med. Enters.,
Inc., 253 F.3d 1314, 1318-19 (11th Cir. 2001). We review a district court’s denial of
a motion for reconsideration for abuse of discretion. Cliff v. Payco Gen. Am. Credits,
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Inc., 363 F.3d 1113, 1121 (11th Cir. 2004).
In this case, AUC, as the prevailing party in the underlying lawsuit, seeks
attorney’s fees from Defendants BQHC and Wyckoff based on the Note. In pertinent
part, ¶ 14 of the Note provides:
The Borrower, and each of them, if more than one, jointly and severally,
promises and agrees to pay in the event of Default, all costs and
expenses incurred in the collection of this Note Agreement, including
reasonable attorney’s fees and costs.
[D. E. 100 at 22]. The Note identifies the relevant parties as follows:
Caritas Healthcare Planning, Inc. (“Caritas” or “Borrower”) [is] a New
York corporation with offices located at 374 Stockholm Street,
Brooklyn, New York 11237, and a wholly-owned subsidiary of
Brooklyn Queens Healthcare, Inc. (“Brooklyn Queens”). . . . Brooklyn
Queens also operates Wyckoff Heights Medical Center (“Wyckoff”). .
..
[Id. at 16].
Paragraph 17 of the Note further provides:
Borrower and all sureties, endorsers and guarantors of this Note
Agreement hereby . . . (e) agree that, notwithstanding the occurrence of
any of the foregoing (except the express written release by Lender or
any such person), they shall be and remain jointly and severally, directly
and primarily, liable for all sums due under this Note Agreement, and
any other documents securing this Note Agreement.
[Id. at 23].
As the district court found, the Note unambiguously forces only “the Borrower”
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to pay reasonable attorney’s fees and costs spent on collecting upon the Note. The
Note further defines the “Borrower” only as Caritas, and not Wyckoff or BQHC.
Because Florida law, the applicable law here, requires contractual provisions for
attorney’s fees to “unambiguously state that intention and clearly identify the matter
in which the attorney’s fees are recoverable,” Sholkoff v. Boca Raton Comm. Hosp.,
Inc., 693 So. 2d 1114, 1118 (Fla. Dist. Ct. App. 1997) (requiring parties to “manifest
in some clear way” an agreement to indemnify for attorney’s fees through express
language evidencing a “meeting of the minds”), we cannot say that the Note
unambiguously provides that AUC can recover attorney’s fees from Wyckoff or
BQHC. AUC therefore is not entitled to fees. See Fla. Patient’s Compensation Fund
v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985) (“[A]ttorney fees may be awarded by a
court only when authorized by statute or by agreement of the parties.”).
AUC argues that by signing the Note, BQHC and Wyckoff became “sureties,
endorsers and guarantors” of the Note, and thereby agreed to pay any attorney’s fees
as a “sum due under this Note,” pursuant to ¶ 17. However, Florida law recognizes
the “doctrine of expressio unius est exclusio alterius,” which “instructs that when
certain matters are mentioned in a contract, other similar matters not mentioned were
intended to be excluded.” In re Celotex Corp., 487 F.3d 1320, 1334 (11th Cir. 2007)
(quotation omitted); accord Shumrak v. Broken Sound Club, Inc., 898 So. 2d 1018,
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1020 (Fla. Dist. Ct. App. 2005). The Note did not include BQHC or Wyckoff in the
attorney’s fees provision, ¶ 14, even though it discussed the parties by their defined
names in ¶¶ 2, 3, 4, 5, and 19 -- suggesting that if the parties had intended BQHC or
Wyckoff to be liable for attorney’s fees, they would have been expressly listed in that
provision.
Moreover, even assuming that the Note was referring to BQHC and Wyckoff
as “sureties, endorsers and guarantors” in the general “all sums due” provision, ¶ 17,
this provision did not make any reference to attorney’s fees. Because “[a] contract
provision specifically dealing with a particular subject controls over a general
provision dealing with that same subject,” Colonial Bank, N.A. v. Taylor Morrison
Serv., Inc. 10 So. 3d 653, 655-56 (Fla. Dist. Ct. App. 2009), we cannot presume that
the parties intended BQHC or Wyckoff to be liable for the attorney’s fees listed in ¶
14.
In short, reading the Note as a whole, we cannot agree with AUC that it is
entitled to recover attorney’s fees from BQHC or Wyckoff, based solely on a general
contractual provision, when the specific attorney’s fees provision made no reference
to these parties. The district court therefore did not err in denying fees to AUC, or
in denying its motion for reconsideration.
AFFIRMED.
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