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                                                           [DO NOT PUBLISH]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
                         ________________________

                               No. 13-12756
                           Non-Argument Calendar
                         ________________________

                   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.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                              (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, 

, 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., 

, 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., 

, 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.” 

(quoting Cmty. State Bank v. Strong, 

, 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, 

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., 

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, 

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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