American Sales and Management Organization, LLC, Etc. v. Lopez and Blake , 217 So. 3d 230 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed April 26, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2329
Lower Tribunal No. 14-17706
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American Sales and Management Organization, LLC, d/b/a Eulen
America,
Appellant,
vs.
Luis Rodriguez Lopez, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, John W.
Thornton, Jr., Judge.
Holland & Knight, LLP, Christopher N. Bellows and Joseph Mamounas, for
appellant.
Dorta Law and Matias R. Dorta; Dimond Kaplan & Rothstein, P.A., David
A. Rothstein and Lorenz Michel Prüss; Kula & Associates, P.A., Elliot B. Kula,
W. Aaron Daniel and William D. Mueller, for appellees.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
FERNANDEZ, J.
American Sales and Management Organization LLC, etc. (“ASMO”)
appeals an Omnibus Order on appellees Luis Rodriguez Lopez’s and Brent Blake’s
motions for partial summary judgment, and an Order on Joint Motion to Determine
Amount of Expenses that ASMO must “Advance” and to Establish a Going-
Forward Protocol Regarding “Advancement” in the defense of the underlying
lawsuit. We affirm because the parties’ Operating Agreement obligates ASMO to
advance expenses.
The Operating Agreement contains an advancement provision that is clear
and unambiguous. Section 5.15(b) of the parties’ Operating Agreement requires
that ASMO shall indemnify and hold harmless any person it sues by reason of the
fact that such person was a manager or officer of ASMO. Section 5.15(f) requires
that expenses subject to indemnification shall be paid by ASMO in advance of
such proceedings’ final disposition.1
ASMO sued by reason of the fact that the appellees Rodriguez and Blake
served as officers and managers of ASMO. ASMO alleged in its Fourth Amended
Complaint and Demand for Jury Trial that its claims arose from a multi-year
scheme developed and executed by Rodriguez and Blake while they
simultaneously served as ASMO’s two highest-ranking officers, managers, and
agents. ASMO alleged that Rodriguez and Blake breached their duties of loyalty
and care in their capacity as officers and managers of ASMO.
1 Advancement, as distinct from indemnification, involves the advance payment
of litigation expenses regardless of whether indemnification is later determined.
2
The trial court therefore correctly found that, pursuant to the clear and
unambiguous language of the advancement provision, ASMO must advance
expenses. See Andersen Windows, Inc. v. Hochberg, 997 So. 2d 1212, 1214 (Fla.
3d DCA 2008)(stating that a contract must be enforced as written when it is clear
and unambiguous).
Affirmed.
3