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Filing # 71620459 E-Filed 05/03/2018 11:11:27 AM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA
CASE NO.: 2017-CA-004308
UP FIELDGATE US INVESTMENT EAST,
COLONIAL LLC,
Plaintiff,
VS.
DICK'S SPORTING GOODS, INC., a Delaware
corporation,
Defendant. /
DEFENDANT'S MOTION FOR ATTORNEYS' FEES AND INCORPORATED
MEMORANDUM OF LAW
COME NOW Defendant, Dick's Sporting Goods, Inc. ("DSG"), by and through its
undersigned attorneys, and hereby file this Motion for Attorneys' Fees and Incorporated
Memorandum of Law, and in support thereof state as follows:
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff UP Fieldgate US Investments - East Colonial, LLC ("Landlord") filed the
Amended Complaint in this matter on or about September 7, 2017. See Final Order of Dismissal
Order with Prejudice dated 4/3/2018 ("Order"), at ¶ 1. The Amended Complaint concerned the
Lease, dated May 14, 2014, between DSG and Landlord, for the Dick's Sporting Goods store
located adjacent to the Orlando Fashion Square Mall (the "Mall") in Orlando, Florida. Id.
Landlord brought several claims against DSG, largely revolving around Section 1.7 of the
Lease. Most significantly, Landlord sought a declaration regarding the meaning of Section 1.7,
and that DSG is in default of the Lease. See Am. Compi. at pp. 2 ("Landlord seeks a declaration
from the Court that [DSG] is in default; ..."), 12-13 ("WHEREFORE, Landlord requests that this
Court: (a) Enter a declaratory judgment declaring that: 1. [DSG] is in default of the Lease."). In
addition to seeking past rent allegedly due under the Lease, Landlord also asserted that it was
"entitled to recover its reasonable attorneys' fees and costs under the Lease." See id. at p. 12, ¶
92 ("Landlord is entitled to recover its reasonable attorneys' fees and costs under the Lease"), pp.
12-13 ("WHEREFORE, Landlord requests that this Court: (a) Enter a declaratory judgment
declaring that: ... 6. award [sic] Landlord its reasonable attorneys' fees and costs; ...")
The Court granted DSG's motion to dismiss the Amended Complaint in its entirety, with
prejudice, entering its Final Order of Dismissal with Prejudice on April 3, 2018. The Court ruled
that Landlord was not entitled to the relief it sought, and that each of Landlord's claims should be
dismissed with prejudice. See Final Order of Dismissal With Prejudice, at ¶J 10-11. In so doing,
the Court reserved jurisdiction as to entitlement and the amount of attorney's fees and costs to be
awarded. See id. atlJl2.
II. ARGUMENT
As set forth above, Landlord instituted this action, alleging and seeking a declaration that
DSG was in default under the Lease. Section 17.17 of the Lease explicitly provides for an award
of attorneys' fees in any legal action where a default under the Lease is alleged:
If any legal action is instituted as a result of a default by either Party
under this Lease that is not cured within the applicable cure period,
the prevailing Party in such action shall be entitled to recover its
reasonable attorney's fees from the non-prevailing Party.
Lease at ¶ 17.17.
Notably, this language is both reciprocal and mandatory. The language is not limited to
the party alleging a breach, but rather entitles whichever party is the "prevailing party" to
2
attorneys' fees. Furthermore, the award is compulsory - the prevailing party "shall be entitled to
recover" its attorneys' fees.
Contractual provisions such as Section 17.17 mandating an award of attorneys' fees in
litigation are valid and enforceable in Florida. See e.g. Lashkajani v. Lashkajani, 911 So. 2d 1154
(Fla. 2005) (trial courts do not have discretion to decline to enforce fees and costs provisions in a
contract); Jacobson v. Jacobson, 595 So. 2d 292, 293-294 (Fla. 5th DCA 1992) ("...the trial court
erred in not awarding [] reasonable attorney's fees.... A court has no discretion to decline to
enforce contractual provisions for an award of prevailing party attorney's fees any more than any
other valid contractual provision.") (citations omitted); Fortenberry Professional Bldg. v.
Zechman, 581 So. 2d 972, 973 (Fla. 5 th DCA 1991) ("Courts have no discretion to decline to
enforce contract provisions for awards of attorney's fees.") (citations omitted). Having
successfully moved to dismiss Landlord's claims with prejudice, DSG is the prevailing party and
is entitled to attorneys' fees. See Nicolitz v. Baptist Eye Institute, 830 So.2d 270, 272 (Fla. P t
DCA 2002).
Moreover, even if the language of Section 17.17 were not already reciprocal, Florida law
would treat it as such. Florida law provides that "[i]f a contract contains a provision allowing
attorney's fees to a party when he or she is required to take any action to enforce the contract, the
court may also allow reasonable attorney's fees to the other party when that party prevails in any
action, whether as plaintiff or defendant, with respect to the contract." § 57.105(7), Fla. Stat.; and
see e.g. Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113, 115 (Fla. 4 th DCA 2014) ("The statute
makes a unilateral contract clause for attorney's fees bilateral in effect. Assuming the request for
attorney's fees is properly pled, '[t]he award is mandatory, once the lower court determines that a
party has prevailed.") (quoting Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 453
3
(Fla. 5th DCA 2002)); Mediplex Constr. of Fla., Inc. v. Schaub, 856 So. 2d 13, 15 (Fla. 4th DCA
2003) ("[T]he purpose behind section 57.105(7) is to provide mutuality of attorney's fees as a
remedy in contract cases.") (citation omitted). Accordingly, DSG is entitled to an award of
attorneys' fees.
III. CONCLUSION
Landlord filed this action seeking in part a declaration that DSG was in breach of the Lease.
Landlord's claims have been dismissed with prejudice. Accordingly, DSG is entitled to an award
of its attorneys' fees and costs incurred herein pursuant to the plain and ambiguous terms of the
prevailing party attorney fee provision of the Lease.
WHEREFORE, Defendant, Dick's Sporting Goods, Inc., respectfully requests entry of an
Order granting this Motion, awarding DSG its attorneys' fees and costs incurred herein, reserving
jurisdiction to determine the amount and reasonableness of the fees and costs to be awarded, and
granting such other and further relief as this Court deems necessary and proper.
DATED this,,,,_'day of May, 2018
N
(1 n
L4&
James E. Walson
Florida Bar No. 0787981
Ronald D. Edwards, Jr.
Florida Bar No. 0053233
LOWNDES, DROSDICK, DOSTER, KANTOR
& REED, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802-2809
Phone: (407) 843-4600
Facsimile: (407) 843-4444
james.walson@lowndes-law.com
ronald.edwards@lowndes-law.com
litcontrol@lowndes-law.com
susie.whitaker@lowndes-law.com
tracy.kennison@lowndes-law.com
Attorneys for Defendant
rd
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing motion was furnished
via ePortal to NICOLETTE VILMOS, ESQUIRE, 390 North Orange Avenue, Suite 1400,
Orlando, Florida 32802, and LACEY D. CORONA, ESQUIRE, 4100 Legendary Drive, Suite 280,
Destin, Florida 32541 this ri day of May, 2018.
Ronald D. tdwards, J
0105230\176224\5957668v3
5
Preview
Filing # 71620459 E-Filed 05/03/2018 11:11:27 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO.: 2017-CA-004308 UP FIELDGATE US INVESTMENT EAST, COLONIAL LLC, Plaintiff, VS. DICK'S SPORTING GOODS, INC., a Delaware corporation, Defendant. / DEFENDANT'S MOTION FOR ATTORNEYS' FEES AND INCORPORATED MEMORANDUM OF LAW COME NOW Defendant, Dick's Sporting Goods, Inc. ("DSG"), by and through its undersigned attorneys, and hereby file this Motion for Attorneys' Fees and Incorporated Memorandum of Law, and in support thereof state as follows: I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff UP Fieldgate US Investments - East Colonial, LLC ("Landlord") filed the Amended Complaint in this matter on or about September 7, 2017. See Final Order of Dismissal Order with Prejudice dated 4/3/2018 ("Order"), at ¶ 1. The Amended Complaint concerned the Lease, dated May 14, 2014, between DSG and Landlord, for the Dick's Sporting Goods store located adjacent to the Orlando Fashion Square Mall (the "Mall") in Orlando, Florida. Id. Landlord brought several claims against DSG, largely revolving around Section 1.7 of the Lease. Most significantly, Landlord sought a declaration regarding the meaning of Section 1.7, and that DSG is in default of the Lease. See Am. Compi. at pp. 2 ("Landlord seeks a declaration from the Court that [DSG] is in default; ..."), 12-13 ("WHEREFORE, Landlord requests that this Court: (a) Enter a declaratory judgment declaring that: 1. [DSG] is in default of the Lease."). In addition to seeking past rent allegedly due under the Lease, Landlord also asserted that it was "entitled to recover its reasonable attorneys' fees and costs under the Lease." See id. at p. 12, ¶ 92 ("Landlord is entitled to recover its reasonable attorneys' fees and costs under the Lease"), pp. 12-13 ("WHEREFORE, Landlord requests that this Court: (a) Enter a declaratory judgment declaring that: ... 6. award [sic] Landlord its reasonable attorneys' fees and costs; ...") The Court granted DSG's motion to dismiss the Amended Complaint in its entirety, with prejudice, entering its Final Order of Dismissal with Prejudice on April 3, 2018. The Court ruled that Landlord was not entitled to the relief it sought, and that each of Landlord's claims should be dismissed with prejudice. See Final Order of Dismissal With Prejudice, at ¶J 10-11. In so doing, the Court reserved jurisdiction as to entitlement and the amount of attorney's fees and costs to be awarded. See id. atlJl2. II. ARGUMENT As set forth above, Landlord instituted this action, alleging and seeking a declaration that DSG was in default under the Lease. Section 17.17 of the Lease explicitly provides for an award of attorneys' fees in any legal action where a default under the Lease is alleged: If any legal action is instituted as a result of a default by either Party under this Lease that is not cured within the applicable cure period, the prevailing Party in such action shall be entitled to recover its reasonable attorney's fees from the non-prevailing Party. Lease at ¶ 17.17. Notably, this language is both reciprocal and mandatory. The language is not limited to the party alleging a breach, but rather entitles whichever party is the "prevailing party" to 2 attorneys' fees. Furthermore, the award is compulsory - the prevailing party "shall be entitled to recover" its attorneys' fees. Contractual provisions such as Section 17.17 mandating an award of attorneys' fees in litigation are valid and enforceable in Florida. See e.g. Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005) (trial courts do not have discretion to decline to enforce fees and costs provisions in a contract); Jacobson v. Jacobson, 595 So. 2d 292, 293-294 (Fla. 5th DCA 1992) ("...the trial court erred in not awarding [] reasonable attorney's fees.... A court has no discretion to decline to enforce contractual provisions for an award of prevailing party attorney's fees any more than any other valid contractual provision.") (citations omitted); Fortenberry Professional Bldg. v. Zechman, 581 So. 2d 972, 973 (Fla. 5 th DCA 1991) ("Courts have no discretion to decline to enforce contract provisions for awards of attorney's fees.") (citations omitted). Having successfully moved to dismiss Landlord's claims with prejudice, DSG is the prevailing party and is entitled to attorneys' fees. See Nicolitz v. Baptist Eye Institute, 830 So.2d 270, 272 (Fla. P t DCA 2002). Moreover, even if the language of Section 17.17 were not already reciprocal, Florida law would treat it as such. Florida law provides that "[i]f a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract." § 57.105(7), Fla. Stat.; and see e.g. Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113, 115 (Fla. 4 th DCA 2014) ("The statute makes a unilateral contract clause for attorney's fees bilateral in effect. Assuming the request for attorney's fees is properly pled, '[t]he award is mandatory, once the lower court determines that a party has prevailed.") (quoting Holiday Square Owners Ass'n v. Tsetsenis, 820 So. 2d 450, 453 3 (Fla. 5th DCA 2002)); Mediplex Constr. of Fla., Inc. v. Schaub, 856 So. 2d 13, 15 (Fla. 4th DCA 2003) ("[T]he purpose behind section 57.105(7) is to provide mutuality of attorney's fees as a remedy in contract cases.") (citation omitted). Accordingly, DSG is entitled to an award of attorneys' fees. III. CONCLUSION Landlord filed this action seeking in part a declaration that DSG was in breach of the Lease. Landlord's claims have been dismissed with prejudice. Accordingly, DSG is entitled to an award of its attorneys' fees and costs incurred herein pursuant to the plain and ambiguous terms of the prevailing party attorney fee provision of the Lease. WHEREFORE, Defendant, Dick's Sporting Goods, Inc., respectfully requests entry of an Order granting this Motion, awarding DSG its attorneys' fees and costs incurred herein, reserving jurisdiction to determine the amount and reasonableness of the fees and costs to be awarded, and granting such other and further relief as this Court deems necessary and proper. DATED this,,,,_'day of May, 2018 N (1 n L4& James E. Walson Florida Bar No. 0787981 Ronald D. Edwards, Jr. Florida Bar No. 0053233 LOWNDES, DROSDICK, DOSTER, KANTOR & REED, P.A. 215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802-2809 Phone: (407) 843-4600 Facsimile: (407) 843-4444 james.walson@lowndes-law.com ronald.edwards@lowndes-law.com litcontrol@lowndes-law.com susie.whitaker@lowndes-law.com tracy.kennison@lowndes-law.com Attorneys for Defendant rd CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing motion was furnished via ePortal to NICOLETTE VILMOS, ESQUIRE, 390 North Orange Avenue, Suite 1400, Orlando, Florida 32802, and LACEY D. CORONA, ESQUIRE, 4100 Legendary Drive, Suite 280, Destin, Florida 32541 this ri day of May, 2018. Ronald D. tdwards, J 0105230\176224\5957668v3 5