TOPVALCO INC. v. MICHAEL A. WOLFF

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TOPVALCO INC.,
Appellant,
v.
MICHAEL A. WOLFF and 1045 LLC,
Appellees.
No. 4D21-3143
[February 15, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Donald W. Hafele, Judge; L.T. Case No. 50-2020-CA-
006508-XXXX-MB.
Ross D. Bussard and Edward R. Nicklaus of Nicklaus & Associates P.A.,
Coral Gables, for appellant.
Alyssa M. Reiter of Wicker Smith O’Hara McCoy & Ford, P.A., Fort
Lauderdale, for appellee 1045 LLC.
PER CURIAM.
Topvalco, Inc. (“Topvalco”) appeals an order granting 1045 LLC’s
(“1045”) motion to dismiss Topvalco’s cross-claim. We affirm due to lack
of preservation.
In the personal injury suit below, the plaintiff sued Topvalco, the
property owner, and 1045, the property manager, after falling in a hole in
the property parking lot. Topvalco filed a crossclaim against 1045 for (1)
contractual indemnity and (2) common law indemnity. 1045 moved to
dismiss both claims. The trial court granted 1045’s motion, finding “that
neither count in Topvalco’s Crossclaim can overcome the premise of
Topvalco’s non-delegable duty over the subject property, pursuant to
Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla. 4th DCA
2014).” Topvalco argues on appeal that the trial court misapplied
Pembroke Lakes Mall, which concerns a non-delegable duty and liability of
a premises owner to invitees, and which does not abrogate a premises
owner’s right to seek contractual or common law indemnity from another
party.
We agree that the trial court’s reliance on Pembroke Lakes Mall is
misplaced. There, this court discussed the non-delegable nature of a
business owner’s duty of care to maintain its premises in a reasonably safe
condition for invitees. Id. at 430. However, Pembroke Lakes Mall does not
address indemnification whatsoever. Moreover, the non-delegable nature
of the duty is not a proscription on the landowner’s ability to contract for
the performance of the duty, but rather an inability to escape legal
responsibility for this duty. See U.S. Sec. Servs. Corp. v. Ramada Inn, Inc.,
665 So. 2d 268, 270-71 (Fla. 3d DCA 1995). Consequently, the existence
of a non-delegable duty does not necessarily preclude a claim for
indemnification.
Nevertheless, we affirm because the issue was not preserved for review.
Where an error appears for the first time on the face of an order, a litigant
must move for rehearing, to vacate, or for relief from judgment to bring the
error to the attention of the lower tribunal. Pensacola Beach Pier, Inc. v.
King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011) (holding appellants failed to
preserve otherwise meritorious argument where error first appeared on
face of final summary judgment and appellants failed to move for
rehearing, to vacate, or for relief from judgment); see also Michael A. Marks,
P.A. v. Geico Gen. Ins. Co., 332 So. 3d 11, 12 (Fla. 4th DCA 2022) (agreeing
with provider that trial court erroneously dismissed provider’s declaratory
judgment action but affirming because the argument raised on appeal was
not raised in the proceedings below).
Here, the trial court’s error appeared for the first time on the face of the
order of dismissal, but Topvalco did not move for rehearing or otherwise
timely bring the error to the trial court’s attention. Accordingly, the issue
is not preserved for review, and we affirm.
Even if we were to reach the merits, we would determine that the count
for contractual indemnity was properly dismissed because the plain
language of the contract attached to the complaint does not provide for
indemnification of Topvalco.
Affirmed.
WARNER, CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2