Longport Ocean Plaza Condominium, Inc. v. Robert Cato & Associates, Inc.

137 F. App'x 464
CourtCourt of Appeals for the Third Circuit
DecidedJune 14, 2005
Docket03-3814, 03-3882
StatusUnpublished
Cited by2 cases

This text of 137 F. App'x 464 (Longport Ocean Plaza Condominium, Inc. v. Robert Cato & Associates, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Longport Ocean Plaza Condominium, Inc. v. Robert Cato & Associates, Inc., 137 F. App'x 464 (3d Cir. 2005).

Opinion

OPINION OF THE COURT

PER CURIAM.

Because we write for the parties only, we do not set forth the facts of this case. Robert Cato & Associates, Inc. (“Cato”) appeals from an award of attorney’s fees and costs to Longport Ocean Plaza Condominium, Inc. (“Longport”). 1 Cato argues that its contracts with Longport do not provide for the award with the clarity required for them to be enforced under New Jersey law. We agree with Cato, and we vacate the award.

I.

An award of fees is reviewed for abuse of discretion, but the District Court’s underlying legal conclusions receive plenary review. See Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir.1990). Such conclusions include the Court’s construction of the two contracts at issue. See Ram Constr. Co. v. Am. States Ins. Co., 749 F.2d 1049, 1053 (3d Cir.1984). Since the District Court’s award depended on its construction of those contracts, this Court’s review is effectively plenary.

II.

Longport makes two preemptive attacks on Cato’s appeal. It first argues that the Court lacks jurisdiction to review the award because Cato’s notice of appeal was defective. It then argues that Cato failed to preserve its argument that the District Court misinterpreted the indemnification clauses. Neither claim has merit.

Cato did not file an amended notice after either the October 2003 order modifying the award or the December 2003 order entering judgment. According to Longport, these omissions leave this Court without jurisdiction over either order. See Fed. R.App. P. 4(a)(4)(A)®, (iii), (B)(n). We disagree. As this Court explained in Polonski v. Trump Taj Mahal Associates:

[W]here “subsequent appellate proceedings manifest the appellant’s intent to appeal the attorney’s fees issue,” and where “the opposing party had and exercised a full opportunity to brief the issue and did not raise any claim of prejudice,” this Court has found a notice of appeal specifying one attorney’s fee order sufficient to confer jurisdiction over an appeal from another unspecified attorney’s fee order in the same case.

137 F.3d 139, 144 (3d Cir.1998) (quoting Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 156 n. 10 (3d Cir.1994)). Cato’s appeal was clearly intended to extend to the October and December orders. Since Longport has thoroughly briefed the relevant issues and has offered no evidence of prejudice, we will exercise jurisdiction over them under 28 U.S.C. § 1291.

We also believe that Cato properly preserved its argument that the District Court misinterpreted the indemnity claus *466 es. In its brief in opposition to Longport’s motion for fees and costs, Cato argued that the clauses were ambiguous because “ ‘[ijndemnifieation’ is a term that ordinarily suggests, as between two parties, the shifting responsibility for the claims brought by a third.” App. at 291. Cato devoted at least a page of its brief to this argument. Although the Appendix does not excerpt any more of the brief, we are satisfied that Cato did not merely “allud[e]” to the issue in “stray comments or passing references in assorted documents.” Longport’s Br. at 33-34.

Longport argues that Cato was required to raise the issue earlier to preserve it, but Longport has failed to point to any authority supporting this position. The requirement that errors be preserved in the trial court conserves judicial resources and serves the interests of fairness to the District Court and the appellant’s adversary. See Gardiner v. V.I. Water & Power Authority, 145 F.3d 635, 647 (3d Cir.1998). It gives the District Court an opportunity to correct its own errors, obviating costly appeals. See id.; Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 457 n. 1 (3d Cir.1982), vacated on other grounds, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). These interests have not been dis-served simply because Cato waited until after trial to raise the issue. Longport had an opportunity to respond to Cato’s argument, as did the District Court, which found it “without merit.” App. at 293. We conclude that this sufficed to preserve the issue. 2

III.

We turn to the merits. In New Jersey, indemnification agreements are interpreted according to familiar rules of contract construction. See Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 510 A.2d 1152, 1159 (1986). Clear and unambiguous ones are enforced according to their terms. See Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161 A.2d 717, 720-21 (1960). Ambiguities are resolved by the fact finder, relying on such evidence as “the language used, the surrounding circumstances, and the objectives sought to be achieved.” Pepe v. Twp. of Plainsboro, 337 N.J.Super. 209, 766 A.2d 837, 840 (2001). Should such evidence fail to resolve the ambiguity, however, an indemnity clause must be strictly construed against the indemnitee. See id. (citing Ramos, 103 N.J. 177, 510 A.2d 1152).

We agree with Cato that neither indemnity clause unambiguously requires it to reimburse Longport for fees and costs in Longport’s own action against Cato. While each clause is broadly worded, referring to indemnification “[t]o the fullest extent permitted by law” for “any and all liability,” this language can sweep only as far as the word on which it hinges. That hinge is the word “indemnify.” Although this word can imply any right to reimbursement, it commonly presumes a tripartite arrangement, in which A recovers from B for losses to C. See Black’s Law Dictionary 784 (Bryan A. Garner, ed. in chief, 8th ed.2004) (defining indemnity as “esp., the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures *467 paid to a third party”); 41 Am.Jur.2d Indemnity § 1 (1995) (giving a similar definition).

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137 F. App'x 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/longport-ocean-plaza-condominium-inc-v-robert-cato-associates-inc-ca3-2005.