CCB, LLC v. BankTrust

Case: 13-12756 Date Filed: 12/04/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12756
Non-Argument Calendar
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D.C. Docket No. 3:10-cv-00228-LC-EMT
CCB, LLC,
A Florida Limited Liability Company,
CHARLES B. BARNIV,
CYNTHIA BARNIV,
BRUCE G. WITKIND,
Plaintiffs-Appellants,
versus
BANKTRUST,
An Alabama Banking Corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(December 4, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 13-12756 Date Filed: 12/04/2013 Page: 2 of 4
CCB, LLC, Charles and Cynthia Barniv, and Bruce Witkind appeal the
dismissal with prejudice of their complaint against BankTrust. BankTrust moved
to dismiss the complaint after it obtained a decision in its favor from a Florida
court that involved the same parties and the same financial transaction, and the
district court granted the motion based on res judicata. But CCB, the Barnivs, and
Witkind argue that the decision of the Florida court, which is pending on appeal, is
not a final judgment. Because the decision of the Florida court is not final under
Florida law, that decision does not bar the complaint that CCB, the Barnivs, and
Witkind filed in the district court. We vacate the order that dismissed the
complaint filed by CCB, the Barnivs, and Witkind, and we remand for the district
court to reinstate their complaint.
CCB obtained a loan from BankTrust that was secured with guarantees from
the Barnivs and Witkind. After CCB defaulted on the loan, BankTrust filed in a
Florida court an action to foreclose on property purchased by CCB and to obtain
judgments against CCB, the Barnivs, and Witkind. CCB, the Barnivs, and Witkind
answered that they had been induced fraudulently to obtain the loan.
CCB, the Barnivs, and Witkind filed a complaint in the district court that
repeated their allegations about being defrauded by BankTrust. The district court
stayed the action in deference to the ongoing proceedings in the Florida court. See
Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 818–19, 96 S.
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Ct. 1236, 1247 (1976). We affirmed. CCB, LLC, v. BankTrust, No. 11-11459
(11th Cir. Aug. 23, 2011).
The Florida court entered summary judgment in favor of BankTrust, and it
moved the district court to lift its stay and dismiss the complaint of CCB with
prejudice. BankTrust argued that it was entitled to dismissal of the complaint
based on res judicata. CCB, the Barnivs, and Witkind responded that the Florida
court refused to consider their evidence; failed to address their claims of fraud; and
its decision was not final. The district court lifted its stay and ruled that the
decision of the Florida court barred CCB, the Barnivs, and Witkind from re-
litigating the same claims against BankTrust. The district court dismissed the
complaint of CCB, the Barnivs, and Witkind with prejudice.
We review de novo a dismissal based on res judicata. Lozman v. City of
Riviera Beach, Fla., 713 F.3d 1066, 1069 (11th Cir. 2013).
“Under res judicata, also known as claim preclusion, a final judgment on the
merits bars the parties to a prior action from re-litigating a cause of action that was
or could have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d
1289, 1296 (11th Cir. 2001). “In considering whether to give preclusive effect to
state-court judgments under res judicata or collateral estoppel, the federal court
applies the rendering state’s law of preclusion.” Lozman, 713 F.3d at 1069
(quoting Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011)).
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Under Florida law, a judgment is final and has preclusive effect “when not
reversed on appeal,” Dep’t of Health and Rehabilitative Servs. v. Prince, 601 So.
2d 588, 590 (Fla. Dist. Ct. App. 1992), or “when the time for rehearing and
certiorari review in th[e] case expire[s],” Thiesen v. Old Republic Ins. Co., 468 So.
2d 434, 435 (Fla. Dist. Ct. App. 1985).
The district court erred when it dismissed the complaint of CCB based on res
judicata. After the Florida court entered summary judgment against CCB, the
Barnivs, and Witkind, they appealed. Their appeal was pending when the district
court dismissed their complaint against BankTrust. Because the decision of the
Florida court is not final, it does not bar the complaint that CCB, the Barnivs, and
Witkind filed against BankTrust in the district court. See Thiesen, 468 So. 2d at
435.
We VACATE the dismissal of the complaint filed by CCB, the Barnivs, and
Witkind, and we REMAND for the district court to reinstate their complaint.
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