HANCOCK BANK v. BOYD et al

Filing 42

ORDER granting 31 Motion to Dismiss Counterclaim. The counterclaims against Plaintiff are dismissed with prejudice. Signed by JUDGE RICHARD SMOAK on 9/9/2011. (jem)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
HANCOCK BANK, a Mississippi
banking corporation,
Plaintiff,
vs.

CASE NO. 5:11-cv-132 /RS-EMT

BOYD BROTHERS, INC., a Florida
corporation, et al.,
Defendants,
_________________________________________/
ORDER
Before me are the Plaintiff’s Motion to Dismiss Counterclaim (Doc. 31) and
Defendants’ Brief in Opposition (Doc. 39).
Standard of Review
To survive a motion to dismiss, a complaint must contain sufficient facts, which
accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct.
1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief
could be granted under any set of facts that could be proven consistent with the
allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct.
2229, 2232 (1984). In making this determination, the court must accept all factual
allegations in the complaint as true and in the light most favorable to Plaintiff.
Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

Analysis
Defendants have three remaining counts in their counterclaim—for Recission,
Punitive Damages, and Attorneys’ Fees and Costs.1
“It is undisputed that the absence of a remedy at law is a required element of the
rescission action.” Anchor Bank, S.S.B. v. Conrardy, 763 So. 2d 360, 361 (Fla. 4th DCA
1998). See also Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So. 2d
614, 617 (Fla. 2d DCA 1965). Here, Defendants allege that Plaintiff fraudulently
induced and/or used coercion and duress to force Defendants to execute certain lending
agreements. Because this case is entirely about money, damages are the appropriate
remedy.
A claim for punitive damages is not, by itself, a cause of action. See Antoine v.
State Farm Mut. Auto. Ins. Co., 662 F. Supp. 2d 1318, 1327 (M.D. Fla. 2009). Rather,
punitive damages are a remedy which may be sought for intentional misconduct or gross
negligence. FLA. STAT. § 768.72.
Defendant’s final claim is for attorney fees under Fla. Stat. § 58.105(7), which
allows for the collection of fees where the contract contains a provision. Here, the
promissory notes provide the following:
ATTORNEYS’ FEE; EXPENSES. Lender may hire or pay
someone else to help collect this Note if Borrower does not
pay. Borrowor will pay Lender the amount of these costs and
expenses, which includes . . . reasonable attorneys’ fees and
Lenders’ legal expenses. . .” (Doc. 1, p. 5).

1

Defendants dismissed their claim for conversion. (See Doc. 35).

I do not read this provision to create any rights for the borrower to collect
attorneys’ fees.
The Motion to Dismiss Counterclaim (Doc. 31) is GRANTED. The counterclaims
against Plaintiff are dismissed with prejudice.

ORDERED on September 9, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE