Community Redevelopment Agency of the City of West Palm Beach v. Vita Lounge, LLC

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF WEST
PALM BEACH,
Appellant,
v.
VITA LOUNGE, LLC, a Florida limited liability company,
Appellee.
No. 4D2024-2576
[November 12, 2025]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Carolyn Bell, Judge; L.T. Case No. 502022CA007080XXXX.
Robert 	I. 	Chaskes, 	Gerald 	B. 	Cope, 	Jr., 	and 	Noelle 	P. 	Pankey 	of
Akerman LLP, West Palm Beach, and Kimberly L. Rothenburg of City of
West Palm Beach City Attorney’s Office, West Palm Beach, for appellant.
F. Malcolm Cunningham, Jr., and Amy L. Fischer of The Cunningham
Law Firm, P.A., West Palm Beach, for appellee.
L EVINE , J.
Our inquiry in this appeal is whether there is a binding contract
between the parties. Appellee, Vita Lounge, LLC (“Vita”), sought attorney’s
fees based on the 	existence of a binding contract between Vita and
appellant, Community Redevelopment Agency of the City of West Palm
Beach (“CRA”). The CRA disputes the existence of a binding contract. We
find that there was not a contract to base attorney’s fees upon. 	Further,
even if there was a binding contract, Vita relies on an indemnification
clause 	that 	would 	not 	allow 	attorney’s 	fees. 	Thus, 	we 	reverse 	the
imposition of attorney’s fees. 	Because we reverse Vita’s entitlement to
attorney’s fees, the remaining two issues raised by the CRA on appeal are
moot.1
1 The two moot issues raised by the CRA are that the evidence presented by Vita
did not support the application of a multiplier and that the fee award contains
additional errors requiring reversal.

2
Facts
In 2022, the CRA issued a Request for Proposal (“RFP”) to operate the
Sunset Lounge, a historic building in West Palm Beach. 	The RFP stated
that “[t]he CRA and Proposer will be contractually bound only if and when
a written contract between the parties is executed by the appropriately
authorized officials of the CRA and Proposer.” 	The word “only” was
emphasized in the RFP. 	The RFP also contained an indemnity provision:
21. Indemnification. 	Proposer agrees to indemnify, defend,
save and hold harmless the [CRA], the City of West Palm
Beach and their officers, agents and employees, from any
claim, demand, suit, loss, cost or expense for any damages
that may be asserted, claimed or recovered against or from the
CRA, City, their officials, agents, or employees by reason of
any damage to property or personal injury, including death,
and 	which 	damage, 	injury 	or 	death 	arises 	out 	of 	or 	is
incidental 	to 	or 	in 	any 	way 	connected 	with 	Proposer’s
performance of the services or caused by or arising out of (a)
any act, omission, default or negligence of Proposer in the
provision of the services under the agreement; (b) property
damage or personal injury, which damage, injury or death
arises out of or is incidental to or in any way connected with
Proposer’s execution of services under the agreement; or (c)
the 	violation 	of 	federal, 	state, 	county 	or 	municipal 	laws,
ordinances or regulations by Proposer. 	This indemnification
includes, 	but 	is 	not 	limited 	to, 	the 	performance 	of 	the
agreement by Proposer or any act or omission of Proposer, its
agents, servants, contractors, patrons, guests or invitees and
includes any costs, attorneys’ fees, expenses and liabilities
incurred in the defense of any such claims or the investigation
thereof.
Vita submitted a proposal in response to the RFP and was selected as
the winning proposer. Vita was then notified that it had been disqualified
from the Sunset Lounge RFP for violation of lobbying provisions in the RFP
and Section 66-8 of the City of West Palm Beach Code of Ordinances. Vita
filed a complaint against the CRA seeking declaratory and injunctive relief
to invalidate Vita’s disqualification.
The trial court entered final judgment in favor of Vita on its claim for
declaratory relief against the CRA, finding that Vita’s disqualification was
not proper or lawful because the CRA “acted arbitrarily and capriciously
in disqualifying Vita from the Sunset RFP.” The final judgment noted that

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the Sunset Lounge RFP “award was not a final contract but, rather,
entitled 	Vita 	to 	engage 	in 	negotiations 	with 	the 	CRA 	to 	finalize 	an
agreement to operate and manage the Sunset Lounge.” (emphasis added).
Vita’s disqualification from the Sunset Lounge RFP was thus invalidated
and the CRA was then required to negotiate in good faith for a contract in
order to operate the Sunset Lounge.
Vita filed a motion for attorney’s fees and costs based on the indemnity
provision 	in 	the 	Sunset 	Lounge 	RFP 	and 	section 	57.105(7), 	Florida
Statutes (2022).2 In opposition to Vita’s motion, the CRA argued that the
RFP was not a contract and that the RFP specifically stated that the CRA
and the proposer would be bound only if a written contract was executed.
The CRA also argued that the indemnity provision did not provide a basis
for Vita to seek attorney’s fees.
The trial court found that Vita was entitled to fees because a contract
had been established between Vita and the CRA. 	The trial court found
that the original RFP was not an offer. 	Rather, the trial court determined
that Vita’s proposal in response to the RFP was the offer to the CRA, and
“when the CRA voted to award the RFP to Vita, that was the CRA’s
acceptance.”
The trial court then held a fee hearing. 	Central to this hearing was
whether Vita’s counsel was entitled to a contingency fee multiplier. 	The
trial 	court 	eventually 	decided 	that 	Vita’s 	counsel 	was 	entitled 	to 	a
contingency 	fee 	multiplier 	of 	2.0. 	Vita 	was 	awarded 	a 	total 	of
$1,194,924.93 in attorney’s fees. 	This appeal follows.
Analysis
The CRA argues that the trial court erred by determining that Vita was
entitled to attorney’s fees because there is no enforceable contract between
Vita and the CRA and, even if a contract did exist, the indemnification
provision is not a basis to award fees. 	We review de novo the entitlement
to attorney’s fees based on a contractual provision and the application of
section 57.105(7). 	Deutsche Bank v. Quintela, 268 So. 3d 156, 158 (Fla.
4th DCA 2019). 	“Section 57.105(7), Florida Statutes, operates to make a
2 Vita also moved for attorney’s fees pursuant to section 57.112(2), Florida
Statutes (2022), which allows fees in actions filed to challenge the adoption or
enforcement of local ordinances that are expressly preempted by the state
constitution or state law, and pursuant to 42 U.S.C. §§ 1983 and 1988, which
provide for fees when a party prevails on certain constitutional challenges. The
trial court denied Vita’s motion for fees on both grounds.

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unilateral attorney’s fees provision in a [] contract reciprocal.” 	Grosso v.
HSBC Bank USA, N.A. as Tr. of ACE Sec. Corp., 275 So. 3d 642, 644 (Fla.
4th DCA 2019).
“The 	question 	of 	whether 	the 	parties 	intended 	to 	form 	a 	binding
contract is determined by examining the language of the document in
question and the surrounding circumstances.” 	Midtown Realty, Inc. v.
Hussain, 712 So. 2d 1249, 1251-52 (Fla. 3d DCA 1998). 	“[I]f the parties
prescribe 	terms 	to 	effectuate 	a 	binding 	agreement, 	such 	terms 	are
controlling.” 	Triton Stone Holdings, L.L.C. v. Magna Bus., L.L.C., 308 So.
3d 1002, 1007 (Fla. 4th DCA 2020). 	Thus, case law is clear that “[w]here
the 	parties 	intend 	that 	there 	will 	be 	no 	binding 	contract 	until 	the
negotiations are reduced to a formal writing, there is no contract until that
time.” 	Id.; see also Hous. Auth. of City of Fort Pierce v. Foster, 237 So. 2d
569, 571 (Fla. 4th DCA 1970); Club Eden Roc, Inc. v. Tripmasters, Inc., 471
So. 2d 1322, 1324 (Fla. 3d DCA 1985).
The 	RFP 	specifically 	stated 	that 	“[t]he 	CRA 	and 	Proposer 	will 	be
contractually bound only if and when a written contract between the
parties is executed by the appropriately authorized officials of the CRA and
Proposer.” 	Based on the plain language of the RFP, neither party was
bound, nor was there a binding contract, until a written agreement was
executed. 	See Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla.
2d DCA 2011) (“Under Florida law, contracts are construed in accordance
with their plain language, as bargained for by the parties.”). Therefore, we
find the trial court erred in awarding attorney’s fees based on a contract
that was not written or agreed to. 	Because the parties intended to be
bound only when the negotiations were reduced to a formal writing, and a
formal writing was never executed, there was no contractual basis to
support an award of fees under section 57.105(7). 	Rather, the CRA’s
selection of Vita was “nothing more than an ‘agreement to agree,’” which
is not enforceable. 	Midtown Realty, 712 So. 2d at 1252 (finding that a
letter of intent to purchase a property was not an enforceable contract
because it stated that “a more detailed and formal Purchase Agreement”
would be presented).
The CRA’s selection of Vita did not create a contract between the
parties. 	“A 	request 	for 	proposal 	is 	used, 	for 	example, 	when 	the
municipality is unable to define the scope of work required completely, or
when responses may require subsequent negotiation. 	As a result, a
contract is not typically formed until after the negotiation process.” 	City of
Cocoa v. Villas of Cocoa Vill., LLC, 343 So. 3d 122, 124 (Fla. 5th DCA 2022)
(emphasis added) (citations omitted). 	In the instant case, we find a

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contract was not formed by the CRA’s selection of Vita, which required
further action to create a contract between the parties.
The case of City of Cocoa is instructive. 	The City of Cocoa issued an
RFP inviting interested parties to submit a proposal to develop real estate
the city had acquired. 	Id. at 123. 	The RFP explained that the winning
proposal would be required to enter into a binding development agreement
with the city. 	Id. 	The appellee was selected as the winning proposer. 	Id.
After nearly three years of negotiations, a final contract had not been
executed. 	Id. 	The city moved to terminate negotiations with the appellee
in order to issue a new RFP. 	Id. 	The appellee sued, seeking to enjoin the
city “from issuing a new request for proposal or awarding a bid to anyone
other than the [appellee].” 	Id.
The Fifth District held that there was no enforceable contract between
the parties because the RFP “expressly stated that the City and the
winning proposer would negotiate before forming any contract, and that
the Cocoa City Council would then have to approve the contract.” 	Id. at
124. The court reiterated that a contract, following a request for proposal,
is not typically formed until after negotiation is completed. 	Id.; see also
PCA Life Ins. Co. v. Metro. Dade Cnty., 682 So. 2d 1102, 1103 (Fla. 3d DCA
1995) (holding that the appellant “did not become a party to a contract as
a result of its initial selection as one with whom the county would attempt
to negotiate a contract”).
In this case, the CRA’s selection of Vita did not create a contract
between the parties. 	Thus, there was no enforceable contract for the trial
court to award fees under. 	The RFP clearly contemplated that, for the
parties to be contractually bound, the parties had to execute a written
contract. Because a written contract was never executed, the parties were
not contractually bound, and thus, the trial court erred in finding that Vita
was entitled to attorney’s fees.
We also find that, even if an enforceable contract existed, the provision
relied on by Vita does not provide a basis to award attorney’s fees to Vita.
The provision relied upon is an indemnity clause, which does not extend
to 	fees 	between 	the 	parties. 	The 	provision 	is 	clearly 	labeled 	as 	an
indemnification clause, which is indicative of the provision’s meaning. See
Leon v. Carollo, 246 So. 3d 490, 494 (Fla. 3d DCA 2018) (“The title and
headings are permissible indicators of meaning.”) (citation omitted).
“Generally in Florida, indemnity provisions apply only to third-party
claims.” 	MVW Mgmt., LLC v. Regalia Beach Devs. LLC, 230 So. 3d 108,
112 (Fla. 3d DCA 2017). 	“Florida courts have held that indemnification

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clauses . . . apply only to liability for claims brought by third parties, and
not to suits between the contracting parties.” 	Int’l Fidelity Ins. Co. v.
Americaribe-Moriarty JV, 906 F. 3d 1329, 1337 (11th Cir. 2018). “[A] party
to a contract cannot use an indemnity clause to shift attorney fees between
the parties unless the language of the clause shows an intent to clearly
and unambiguously shift the fees.” 	MVW Mgmt., 230 So. 3d at 113.
The 	indemnity 	provision 	in 	this 	case 	does 	not 	clearly 	and
unambiguously state that it applies to attorney’s fees for suits between the
parties. 	In International Fidelity, the Eleventh Circuit, while applying
Florida law, found that an indemnity provision did not extend to suits
between the contracting parties. 	906 F. 3d at 1338 (applying Florida law,
specifically section 57.105(7), Florida Statutes). 	The indemnity provision
in that contract stated: “To the fullest extent permitted by law, [CPM] shall
indemnify and hold harmless [Americaribe] . . . from and against all claims,
damage, los[s]es and expenses (including, but not limited to attorneys fees)
arising out of, in connection with or resulting from the performance of
Work under this Subcontract . . . .” 	Id. at 1332. 	The court determined
that Florida law has “held that indemnification clauses similar to the one
in this case apply only to liability for claims brought by third parties, and
not to suits between the contracting parties.” 	Id. at 1337. 	The provision
in International Fidelity was “a general indemnity provision that by default
under Florida law applies only to liability for third party claims,” and the
provision did “not on its face unambiguously state or clearly identify that
Americaribe would be entitled to attorney’s fees when either Americaribe
or CPM was required to take action to enforce the subcontract.” 	Id. at
1337-38. 	The court noted that, had the parties intended to depart from
this default position, the parties could have expressly stated that the
indemnity provision applied to suits between the contracting parties, or
the parties could have included a prevailing party fee provision in the
contract. 	Id. at 1338.
Similarly, in the instant case, even if there had been a binding contract,
the indemnity provision in the RFP does not clearly or unambiguously
state that it provides fees for disputes between the parties. The RFP could
have included a prevailing party fee provision if it intended to cover fees
for disputes between the parties. 	Thus, we find that even if there was a
contract between the parties, which there was not, the trial court erred in

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granting fees to Vita because the indemnification provision did not provide
for fees between Vita and the CRA.3, 4
In sum, the trial court erred in finding that Vita was entitled to an
award of attorney’s fees because there was no contract between Vita and
the CRA, and the indemnification provision did not provide for an award
of attorney’s fees between the parties. 	Accordingly, we reverse the award
of fees in favor of Vita and remand for the trial court to enter an amended
order striking the fee award.
Reversed and remanded with directions.
CIKLIN and FORST , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.
3 Vita argues in the alternative that this court can affirm its fee award because it
was entitled to recover fees under the alternative theories rejected by the trial
court: section 57.112(2) and 42 U.S.C. §§ 1983 and 1988. 	See Dade Cnty. Sch.
Bd. v. Radio Station WQBA, 731 So. 2d 638, 645-46 (Fla. 1999) (holding that an
appellate court may “affirm[] the trial court’s ruling, even though the ruling may
have been based on improper reasoning,” when the trial court “still reached the
right result”). Section 57.112(2) allows the recovery of fees by a prevailing party
in 	an 	action 	against 	the 	local 	government 	to 	challenge 	the 	adoption 	or
enforcement of a local or state ordinance on the grounds of preemption. 	Vita’s
complaint did not include any allegations of preemption. 	Thus, denying fees
under this ground was proper. Similarly, 42 U.S.C. §§ 1983 and 1988 allow for
fees for the prevailing party in an action for certain constitutional violations. We
find that, since Vita did not prevail on a constitutional violation, Vita is not
entitled to fees under 42 U.S.C. §§ 1983 and 1988. 	Thus, we find that the trial
court did not err by denying fees under either basis.
4 Vita also relies on collateral estoppel to assert that the CRA is barred from
contesting that there is an enforceable contract because the CRA did not appeal
the underlying final judgment which rejected the argument that no enforceable
contract existed. 	This argument is unavailing because the underlying final
judgment clearly determined that the award of the Sunset Lounge RFP “was not
a final contract.” 	Nothing in the underlying final judgment prevented the CRA
from raising the issues argued in this appeal.