FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 14, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12144

________________________

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 
2

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, 
3

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
4

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. 
5

________________________

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
6

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
 The appellate court had reversed the dismissal but the court did not cite that as part of 1

its reasoning for rejecting the claim for attorney’s fees.

7

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, was not entitled to attorney’s fees under that 1

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.
8

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: 
9

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
Because no attorney’s fees at all are due to be paid to Safra in these cases, we 2

need not address the other argument asserted o

n appeal. 

10

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.