United States District Court

for the

Southern District of Florida

Palm Springs Mile Associates, Ltd., 

and Philips Lake Worth, LLC, 

Plaintiffs,

v.

T-Mobile USA, Inc., and others, 

Defendants.

Vidal Communication Services, Inc., 

Cross-Plaintiff,

v.

Wireless Connections Group, Inc., 

WC Store 19, LLC, WC Store 21, 

LLC, David Bragg, and Eric Diaz, 

Cross-Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Civil Action No. 20-22841-Civ-Scola

Order Granting in Part and Denying in Part the Motion to Dismiss

This matter is before the Court upon the motion filed by Cross-Defendants 

Wireless Connections Group, Inc. (“Wireless Connections”), WC Store 19, LLC, 

WC Store 21, LLC, David Bragg, and Eric Diaz (collectively, the “CrossDefendants”) to dismiss the amended crossclaim filed by Cross-Plaintiff Vidal 

Communication Services, Inc. (“Vidal”). (Am. Crossclaim (“crossclaim”), ECF No. 

41; Defs.’ Mot. to Dismiss, ECF No. 55.) The crossclaim seeks indemnity from all 

of the Cross-Defendants arising from the Plaintiffs’ claims against Vidal. The 

motion to dismiss takes the position that only Cross-Defendant Wireless 

Connections is liable under the parties’ indemnity agreement and that the 

crossclaim should be dismissed in its entirety on ripeness grounds. Vidal has 

responded to the motion (ECF No. 61) and the Cross-Defendants did not respond 

to Vidal’s arguments as they did not file a reply. Having reviewed the motion, the 

record, and the relevant legal authorities, the Court grants in part and denies 

in part the motion to dismiss (ECF No. 55).

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 1 of 7
1. Background and Facts1

This case arises from the ripple effects of T-Mobile’s recent acquisition of 

Sprint Corporation (“Sprint”) and its subsidiaries, including Sprint Solutions. As 

part of the acquisition, T-Mobile and Sprint Solutions allegedly made 

adjustments to operations that resulted in certain brick and mortar stores 

ceasing to sell Sprint-branded products. Palm Springs Miles Associates, Ltd. and 

Philips Lake Worth, LLC (the “Plaintiffs”) are landlords who leased retail space to 

tenants (WC Store 19 and WC Store 21, collectively “Tenants”) that sold Sprintbranded products, but were allegedly forced to go out of business after T-Mobile 

and Sprint Solutions decided to pull the Sprint-branded products from the 

Tenants’ stores. Additional details are set forth in the Court’s December 29, 

2020 Omnibus Order Denying the Motions to Dismiss filed by T-Mobile USA, Inc. 

and Sprint Solutions, Inc. See Palm Springs Mile Assocs., Ltd. v. T-Mobile USA, 

Inc., No. 20-22841-CIV, 2020 WL 7711687 (S.D. Fla. Dec. 29, 2020) (Scola, J.). 

The following background information sets forth those details relevant to the 

instant motion.

The Plaintiffs sued Defendant Vidal to recover for losses after the Tenants

went out of business following T-Mobile’s acquisition of Sprint. Vidal has now 

filed a crossclaim against the Cross-Defendants in which Vidal seeks to recover 

damages under an indemnification agreement. (ECF No. 41 at ¶2.) On or about 

June 1, 2016 Vidal sold several “Sprint Stores” that it operated to CrossDefendant Wireless Connection. (Id. at ¶5.) Pursuant to the sale of the Sprint 

Stores, Vidal and Wireless Connection entered into an Operations Transfer and 

Indemnification Agreement dated June 1, 2016 (the “Agreement”). (ECF No. 41-

1.) One month later, on July 1, 2016, Vidal, Plaintiff Palm Springs Mile 

Associates, Ltd., and WC Store 19 entered into an assignment for the lease of the 

premises located at 960 West 49th Street, Hialeah, Florida 33012 (the “Hialeah 

Lease”). (ECF No. 41 at ¶7 (citing ECF No. 41-2).) On the same date, Vidal, 

Plaintiff Philips Lake Worth, LLC, and WC Store 21 entered into an assignment 

for the lease of the premises located at 3401 S. Congress Avenue, #104, Palm 

Springs, Florida 33461 (the “Lake Worth Lease”). (Id. at ¶8 (citing ECF No. 41-3).) 

WC Store 19 was the commercial tenant in connection with the Hialeah Lease 

and WC Store 21 was the commercial tenant in connection with the Lake Worth 

Lease. (Id. at ¶¶ 9-10.)

Now that the Plaintiffs have sued Vidal in connection with the Tenants’ 

failure to pay rent due under the Hialeah Lease and the Lake Worth Lease, Vidal 

1 The Court accepts the Cross-Plaintiff’s factual allegations as true for the purposes of evaluating 

the Cross-Defendants’ motion to dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 

F.3d 1364, 1369 (11th Cir. 1997).

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 2 of 7
has cross-claimed against the Cross-Defendants for indemnification from 

exposure that Vidal may have to the Plaintiffs’ claims.

Paragraph 3 of the Agreement provides:

3. Indemnity.

Buyer, and its related entities, assigns, officers, principals, and 

agents, jointly and severally, hereby agrees to indemnify and hold 

harmless the Seller, its successors and assigns, related entities, any 

of Seller’s guarantors under any Lease, and the Seller’s officers, 

principals, attorneys, and agents, from and against any and all 

claims, demands, rental payments, accrued rent, late fees, penalties, 

fines, liabilities, taxes, damages, costs and expense of whatever kind 

or nature, known or unknown, contingent or otherwise, arising 

directly or indirectly, out of or in any way related to any claim or 

demand which originates after the Closing Date from that Buyer’s 

operation of the Sprint Stores in any of the Sprint Store Locations 

pursuant to the Lease for each said Sprint Store Location, including 

but not limited to the Cutler Bay Store and Flagler Store. This 

Indemnification Agreement shall include all reasonable attorney's fees 

incurred by Seller in the defense or the handling of any such potential 

claim.

(ECF No. 41-1 at 3.) The Cross-Defendants do not dispute that the “Sprint Store 

Locations” discussed in the indemnity provision is a reference to the premises 

leased under the Hialeah Lease and the Lake Worth Lease. However, the parties 

dispute the identity of those persons and entities who are bound to indemnify 

Vidal under the indemnity provision. Vidal claims that Wireless Connection, WC 

Store 19, WC Store 21, Bragg, and Diaz “must fully indemnify and hold 

harmless” Vidal from any liability to the Plaintiffs. (ECF No. 41 at ¶27.) The 

Cross-Defendants claim that only Wireless Connection is bound by the 

indemnity provision. (ECF No. 55 at 5.)

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must accept all the complaint’s allegations as true, 

construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 

516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain “a short 

and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) challenges the 

legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing the legal 

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 3 of 7
sufficiency of a complaint’s allegations, the Court is bound to apply the pleading 

standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint “must . . . 

contain sufficient factual matter, accepted as true, to state a claim to relief that 

is plausible on its face.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 

(11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). “Dismissal is therefore 

permitted when on the basis of a dispositive issue of law, no construction of the 

factual allegations will support the cause of action.” Glover v. Liggett Grp., Inc., 

459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing 

Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 

(11th Cir. 1993). “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The 

plausibility standard is not akin to a ‘probability requirement,’ but it asks for 

more than a sheer possibility that a defendant has acted unlawfully.” Id. A court 

must dismiss a plaintiff’s claims if he fails to nudge his “claims across the line 

from conceivable to plausible.” Twombly, 550 U.S. at 570.

Thus, a pleading that offers mere “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action” will not survive dismissal. See id.

at 555. “Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of 

discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 

U.S. at 679.

3. Discussion

A. The Scope of the Indemnity Provision

The parties do not dispute the existence of an enforceable indemnity 

agreement. Rather, their dispute concerns the scope of the indemnity agreement. 

In particular, Vidal claims that all of the Cross-Defendants are bound by the 

indemnity agreement and the Cross-Defendants take the position that only 

Wireless Connection is bound by the indemnity agreement. The indemnity 

language in the Agreement provides, in relevant part, that “Buyer, and its related 

entities, assigns, officers, principals, and agents, jointly and severally, hereby 

agrees to indemnify and hold harmless the Seller . . . .” (ECF No. 41-1 at 3.) The 

parties do not dispute that Cross-Defendant Wireless Connection is bound by 

the indemnity obligation. Nor could they. The agreement defines “Buyer” as 

Wireless Connection and expressly states that the Buyer “agrees to indemnity 

and hold harmless the Seller.” (Id.) The Seller is defined as Vidal. (Id.)

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 4 of 7
The Court now considers whether any of Cross-Defendants Diaz, Bragg, 

WC Store 19, or WC Store 21 is bound by the indemnity provision. The contract 

was signed by Cross-Defendant Eric Diaz in his capacity “as President of 

Wireless Connection Group, Inc.” (ECF No. 41-1 at 5.) Accordingly, Diaz argues 

that he cannot be personally liable under the agreement because “a person who 

signs a contract only in a corporate capacity is not bound as an agent.” (ECF No. 

55 at 5 (quoting Spears v. SHK Consulting and Development, Inc., 338 F.Supp.3d 

1272, 1278 (M.D. Fla. 2018)). However, the motion omits that Spears cites to 

North American Am. Clearing, Inc. v. Brokerage Computer Sys., Inc., which held 

that:

A signature preceded by the word ‘by’ and accompanied by descriptio 

personae, that is, language identifying the person signing the 

document as a corporate officer or something similar, does not create 

personal liability for the person signing a contract to which he or she 

is not a specified party, unless the contract contains language 

indicating personal liability or the assumption of personal obligations.

No. 607-CV-1503-ORL19KRS, 2009 WL 1513389, at *6 (M.D. Fla. May 27, 2009)

(emphasis added) (quoting Fairway Mortgage Solutions, Inc. v. Locust Gardens, 

988 So.2d 678, 681 (Fla. 4th DCA 2008)). Thus, the applicable rule provides that 

although corporate officers are generally not bound by agreements signed in a 

corporate capacity, they may nevertheless be bound where the text of the 

contract indicates that they may be personally liable. In this case, the text of the 

contract specifically provides that the indemnity provision applies to Wireless 

Connections and to its “officers.” (ECF No. 41-1 at 3.) There is no disclaimer of 

personal liability for officers. On the contrary, the contract that Diaz signed as 

president expressly provided that such an officer would be bound under the 

indemnity provision. Accordingly, the Court finds that Diaz is bound under the 

indemnity provision.

However, the Court reaches a different result with respect to CrossDefendants Bragg, WC Store 19, and WC Store 21. The crossclaim leaves the 

Court with at least one simple question: Who is David Bragg? Unfortunately, the 

crossclaim does not so much as attempt to answer that question. It only makes 

the conclusory allegation that Bragg is bound by the indemnity provision 

without explaining how he is in any way related to the Agreement or this 

dispute. Unlike Diaz, Bragg’s name does not appear on the face of the 

Agreement. He is not alleged to be an officer, principal, or agent of any relevant 

entity and the crossclaim provides no description of him. As such, the Court 

cannot conclude that Bragg is bound by the Agreement. The crossclaim also fails 

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 5 of 7
to explain how WC Store 19 and WC Store 21 are bound by the Agreement. 

Vidal’s response brief states that all of the Cross-Defendants, including Bragg 

and the Tenants, “are specifically identified in the Operations Transfer and 

Indemnification Agreement (DE41-7) . . . .” (ECF No. 61 at 8.) As an initial 

matter, there is no docket entry numbered 41-7 in this case, which the Court 

points out in light of Vidal’s citations to other non-existent docket entries such 

as “DE46-7.” (See ECF No. 61 at 2.) Moreover, and contrary to Vidal’s 

representation to the Court, the Operations Transfer and Indemnification 

Agreement that appears at ECF No. 41-1 does not “specifically identif[y]” these 

Cross-Defendants. They are not mentioned there at all. The crossclaim’s

allegations and attachments leave the Court with no basis to keep Bragg or the 

Tenants in this case.

B. Ripeness

The parties dispute whether Vidal can bring a claim under the indemnity 

provision of the Operations Transfer and Indemnification Agreement before 

Vidal’s liability to the Plaintiffs has been established. The Cross-Defendants 

argue that until Vidal’s liability to the Plaintiffs is established, there is no Article 

III Case or Controversy concerning the indemnity agreement. (ECF No. 55 at 5.) 

In support of their position, the Cross-Defendants cite to various cases brought 

under insurance policies that stand for the general proposition that an insurer’s 

obligation to indemnify an insured from losses may not ripen until a court first 

determines the insured’s primary liability in connection with the underlying loss.

(Id. at 7-8 (citing Mid-Continent Cas. Co. v. G.R. Constr. Management, Inc., 278 F. 

Supp. 3d 1302 (M.D. Fla. 2017); Northland Cas. Co. v. HBE Corp., 160 F.Supp.2d 

1348, 1360 (M.D. Fla. 2001) (“Because an insurer's duty to indemnify is 

dependent on the outcome of the case, any declaration as to the duty to 

indemnify is premature unless there has been a resolution of the underlying 

claim.”)).)

The Court agrees with Vidal’s position that the cases that the CrossDefendants cite, which are from the insurance context, are inapposite. Outside 

of the insurance context, the general rule is that “contractual indemnity actions 

[under Florida law] can be filed prior to judgment in the underlying case.”

Pleasant Valley Biofuels, LLC v. Sanchez-Medina, Gonzalez, Quesada, Lage, 

Crespo, Gomez & Machado LLP, No. 13-23046-CIV, 2014 WL 1117254, at *2 

(S.D. Fla. Mar. 20, 2014) (Cohn, J.). The Cross-Defendants, who did not file a 

reply brief, did not address this general rule and the Court finds no reason to 

deviate from it. Additionally, the penultimate sentence of the indemnity provision 

provides: “This Indemnification Agreement shall include all reasonable attorney's 

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 6 of 7
fees incurred by Seller in the defense or the handling of any such potential 

claim.” (ECF No. 41-1 at 3.) Although this contractual language was not raised 

by either party, the Court finds that it forecloses any argument that the 

indemnity obligation can only be triggered after Vidal’s liability to the Plaintiffs is 

established. The plain text of the Agreement provides that the indemnity 

obligation is triggered as soon as the Seller, Vidal, must “defen[d]” or “handl[e]” 

any claim in connection with the applicable lease agreements. And that 

undertaking commenced as soon as this case commenced against Vidal on July 

10, 2020. (ECF No. 1.)

4. Conclusion

For the reasons set forth above, the Court grants in part and denies in 

part the motion to dismiss (ECF No. 55). The crossclaim (ECF No. 41) is 

dismissed as to Cross-Defendants WC Store 19, LLC, WC Store 21, LLC, and 

David Bragg. However, the crossclaim shall remain pending against CrossDefendants Wireless Connections Group, Inc., and Eric Diaz.

Done and ordered, at Miami, Florida, on January 5, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22841-RNS Document 66 Entered on FLSD Docket 01/05/2021 Page 7 of 7