PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
______________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 96-3075
06/07/99
______________________
THOMAS K. KAHN
D. C. Docket No. 91-747-Civ-J-99(S)
CLERK
GONZALO AGUILAR, M.D., DOROTEO
C. AUDIJE, M.D., et al.,
Plaintiffs-Appellants,
versus
SOUTHEAST BANK, N.A., a national
banking association, f.k.a First Federal
Savings and Loan Association of Jacksonville,
Defendant-Appellee,
FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Southeast Bank, N.A.,
Receiver-Appellee.
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Appeal from the United States District
Court for the Middle District of Florida
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(June 7, 1999)
Before ANDERSON, Chief Judge, BIRCH, Circuit Judge, and WOODS*, Senior District Judge.
_______________________
*Honorable Henry Woods, Senior U. S. District Judge for the Eastern District of Arkansas, sitting
by designation.
PER CURIAM:
The facts in this case are set forth in our original opinion in Aguilar v. Southeast Bank,
117
F.3d 1368 (11th Cir. 1997). Because important questions of Florida real property law were
involved, we decided to seek the guidance of the Florida Supreme Court before reaching our
decision. Accordingly, the following question was certified to the Florida Supreme Court:
WHETHER A DEFENDANT WHO IS NOT AN OBLIGOR ON THE ORIGINAL
NOTE AND MORTGAGE IN AN IN REM FORECLOSURE ACTION IS
REQUIRED TO BRING, AS A COMPULSORY COUNTERCLAIM, TORT
CLAIMS ARISING OUT OF THE SAME OPERATIVE FACTS AS THOSE OF
THE FORECLOSURE ACTION.
The question was slightly modified by the Supreme Court as follows:
WHETHER UNDER LONDONO V. TURKEY CREEK, INC.,
609 So.2d 14 (Fla.
1992), A DEFENDANT WHO IS NOT AN OBLIGOR ON THE ORIGINAL NOTE
AND MORTGAGE IN AN IN REM FORECLOSURE ACTION IS REQUIRED TO
BRING, AS A COMPULSORY COUNTERCLAIM, ALL TORT CLAIMS
ARISING OUT OF THE FORECLOSURE ACTION.
The certified question was answered in the negative. Pursuant to this answer, the matter is
REMANDED to the United States District Court for the Middle District of Florida, No. 91-747-Civ-
J-99(S), for adjudication of the tort claims of the doctors who had agreements to purchase
condominiums in the medical office complex being developed by the GIPP Partnership. These
claims alleged tortious interference with a contractual relationship, based on the damages they
suffered when the Bank allegedly breached the loan extension agreement between the Bank and
GIPP Partnership.
IT IS SO ORDERED.
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