Tubbs v. Mechanik Nuccio Hearne & Wester, P.A.

125 So. 3d 1034, 2013 WL 3835838, 2013 Fla. App. LEXIS 11736
CourtDistrict Court of Appeal of Florida
DecidedJuly 26, 2013
DocketNo. 2D12-1177
StatusPublished
Cited by17 cases

This text of 125 So. 3d 1034 (Tubbs v. Mechanik Nuccio Hearne & Wester, P.A.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034, 2013 WL 3835838, 2013 Fla. App. LEXIS 11736 (Fla. Ct. App. 2013).

Opinion

WALLACE, Judge.

Michael L. Tubbs and Raymond A. Tubbs (collectively, the Tubbses) challenge an award of attorney’s fees and taxable costs against them and in favor of Me-chanik Nuccio Hearne & Wester, P.A. (Mechanic Nuccio), the assignee of RC Highlands Holdings of Florida, Inc. (RC Highlands). The trial court determined that RC Highlands was the prevailing party for the purpose of an award of attorney’s fees under the parties’ agreement after the Tubbses dismissed their foreclosure claims against RC Highlands. Because the trial court abused its discretion in determining that RC Highlands became the prevailing party upon the Tubbses’ dismissal of claims that had become moot for reasons unrelated to the merits of the litigation and because such a determination was premature, we reverse the fee award. We approve the award of taxable costs in favor of Mechanik Nuccio. Nevertheless, we also hold that the trial court erred in failing to set off a portion of the judgment held by the Tubbses against the amount of the taxable costs that it awarded to Mechanik Nuccio.

I. THE FACTS AND PROCEDURAL BACKGROUND

In June 2006, the Tubbses entered into a Stock Purchase Agreement under which they sold their stock in Tu-Co Peat, Inc. [1037]*1037(Tu-Co), and Ram Peat, Inc. (Ram), to RC Highlands for $16,000,000. Among the assets of Tu-Co and Ram was real property containing peat reserves. The real property is located in Highlands County. As security for part of the purchase price, the Tubbses each received a promissory note for one million dollars. The Tubbses secured their notes with mortgages on the Tu-Co property and the Ram property. RC Highlands was the maker on the promissory notes; Richard Hudec and Lisa Hu-dec of RC Highlands guaranteed the pay^ ment of the notes. Wachovia Bank, N.A., now Wells Fargo Bank, N.A., acted as a lender to' RC Highlands in connection with the transaction.1 Wells Fargo also obtained a mortgage on the real property owned by Tu-Co and Ram., .

At this point, we note three significant facts concerning the pertinent documents. First, although it acquired no ownership interest in.the real property, RC Highlands was named as a “Mortgagor” in the Tubbses’ mortgages along with Tu-Co and Ram. Second, the Tubbses’ mortgages included an attorney’s fee provision in favor of the mortgagee. Third, the Stock Purchase Agreement contained a forum selection clause requiring any litigation “against any of the parties to. this Agreement on any dispute arising out of this Agreement or any matter related hereto” to be brought in “the State and Federal courts in Hillsborough County.” (Emphasis added.) The designation of Hillsborough County in the Stock Purchase Agreement’s forum selection clause contributed to some of the complexity of the litigation that followed because the real property is located in Highlands County.

The notes executed by RC Highlands in favor of the Tubbses went into default in 2008. After this default, the parties became embroiled in five separate actions. The Tubbses filed four of these actions in Highlands County. RC Highlands and Lisa Hudec filed the fifth action in Hills-borough County. Basic information concerning the claims asserted in each of these actions is critical to an understanding of the issues in this case. We turn now to an examination of these five actions.

The Guarantee Case. Initially, each of the Tubbses filed an action against Richard Hudec and Lisa Hudec in Highlands County on their guarantee of the promissory note made by RC Highlands and for alleged fraud. These cases, numbers GC 08-391 and GC 08-392, were consolidated. We will refer to these consolidated cases as “the guarantee case.”

The Foreclosure Case. Next, each of the Tubbses filed an action in Highlands County against RC Highlands, Tu-Co, and Ram to foreclose their mortgages on the real property. The trial court also consolidated these cases, numbers GC 08-903 and GC 08-904. We will refer to these consolidated cases as “the foreclosure case.” Although RC Highlands had no ownership interest in the real property, it was the maker of the notes and a named mortgagor. Thus the Tubbses named RC Highlands as a. defendant in the foreclosure case and requested a deficiency judgment against it. The Tubbses also joined Wells Fargo as a defendant in the foreclosure case. Wells Fargo filed a counterclaim and a cross-claim to foreclose its mortgage on the real property owned by Tu-Co and Ram.

The Hillsborough County Case. Finally, in July 2009, RC Highlands and Lisa Hudec filed an action against the Tubbses in Hillsborough County, case number 09-CA-17351. We will refer to case number [1038]*103809-CA-17351 as “the Hillsborough County case.” In the Hillsborough County case, RC Highlands asserted claims against the Tubbses for violations of the Stock Purchase Agreement based on alleged environmental contamination of the mortgaged property. RC Highlands, Tu-Co, and Ram also raised these claims as defenses in the foreclosure case. The Tubbses asserted counterclaims against RC Highlands and Lisa Hudec in the Hillsborough County case.

In July 2010, the parties stipulated that the guarantee case — which was then pending in Highlands County — would be dismissed and that the Tubbses could refile the claims asserted in that action as a counterclaim in the Hillsborough County case. The trial court approved the parties’ agreement and dismissed the guarantee case in accordance with their stipulation. Shortly thereafter, the Tubbses refiled in the Hillsborough County case the claims that they had asserted in the guarantee case. The claims asserted by the Tubbses as counterclaims in the Hillsborough County case included claims against RC Highlands for breach of the promissory notes. RC Highlands did not seek any attorney’s fees or costs against the Tubbs-es because of the dismissal of the guarantee case that had been pending in Highlands County and the refiling of the claims asserted in that case as counterclaims in the Hillsborough County case.

In August 2010, the trial court entered defaults against Tu-Co and Ram in the foreclosure case. On August 30, 2010, the trial court granted an amended motion for summary judgment by Wells Fargo. The trial court determined that the lien of the Wells Fargo mortgage had priority over the Tubbses’ mortgages. On October 1, 2010, the trial court entered a final judgment of foreclosure in favor of Wells Fargo and against the Tubbses, RC Highlands, Tu-Co, and Ram. The total amount due Wells Fargo at the date of the entry of the final judgment of foreclosure was $14,642,330.89.

On October 5, 2010, after the entry of the final judgment in the foreclosure case, the Tubbses filed a notice dismissing RC Highlands as a defendant but reserving their rights to obtain final judgments against Tu-Co and Ram based on the defaults that the trial court had already entered against them. At this point, the Tubbses’ claims on the notes against RC Highlands were already pending in the Hillsborough County case. The Tubbses ultimately obtained final judgments in the foreclosure case against Tu-Co and Ram.

In the meantime, the clerk of the circuit court sold the real property owned by Tu-Co and Ram based on Wells Fargo’s final judgment of foreclosure. The sales proceeds were insufficient to satisfy the amount owed to Wells Fargo, and on November 19, 2010, the trial court entered a deficiency judgment in favor of Wells Fargo and against RC Highlands, Tu-Co, and Ram for $8,438,712.57.

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Cite This Page — Counsel Stack

Bluebook (online)
125 So. 3d 1034, 2013 WL 3835838, 2013 Fla. App. LEXIS 11736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tubbs-v-mechanik-nuccio-hearne-wester-pa-fladistctapp-2013.