FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case Nos. 5D21-2908

 5D22-1693

LT Case No. 2008-11708-FMCI

(Consolidated for disposition)

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DONALD CHARLES BAUERLE, JR.,

Appellant/Cross-Appellee,

v.

CATHERINE JEAN BAUERLE,

CODISCO, INC., A FLORIDA

CORPORATION, CODISCO

INTERNATIONAL INC., A FLORIDA

CORPORATION, COASTLINE

INTERNATIONAL, INC., A FLORIDA

CORPORATION, ET AL.,

Appellees/Cross-Appellants.

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On appeal from the Circuit Court for Volusia County.

Sandra C. Upchurch, Judge.

Tracy S. Carlin and Steven L. Brannock, 

of Brannock Berman & Seider, Tampa,

and Sheila M. Ennis, of Sheila M. Ennis, P.A., 

Edgewater, for Appellant/Cross-Appellee.

Richard F. Hussey, of Richard F. Hussey,

P.A., Fort Lauderdale, for Appellee/CrossAppellant Catherine Jean Bauerle.

No Appearance for Remaining Appellees/Cross-Appellants.

CORRECTED PAGE: 1

CORRECTIONS ARE

UNDERLINED IN RED

MAILED: 10-13-2023

BY: SW
2

August 25, 2023

PER CURIAM.

Before us are appeals and cross-appeals by Donald Charles 

Bauerle, Jr. (“Former Husband”) and Catherine Jean Bauerle 

(“Former Wife”) from two post-dissolution orders.* The first is a 

Final Order on Former Wife’s Third Amended Motion for Contempt 

or to Compel Enforcement of Marital Settlement Agreement and for 

Attorney’s Fees and Other Relief. The second is an Amended Final 

Order Regarding Attorney Fees and Costs. We reverse insofar as 

the trial court ordered Former Husband to transfer the marina 

property described in the Marital Settlement Agreement (“MSA”) 

to Codisco, Inc., a family-owned company, pursuant to a bankruptcy 

court’s order. We also reverse the trial court’s finding that Former 

Wife was entitled to an award of attorney’s fees as the prevailing 

party. In all other respects, we affirm without further discussion.

Under the doctrine of res judicata, “[a] judgment on the 

merits rendered in a former suit between the same parties or their 

privies, upon the same cause of action, by a court of competent 

jurisdiction, is conclusive not only as to every matter which was 

offered and received to sustain or defeat the claim, but as to every 

other matter which might with propriety have been litigated and 

determined in that action.” Fla. Dep’t of Transp. v. Juliano, 801 So. 

2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige, 448 So. 2d 1009, 

1012 (Fla. 1984)). “[A] judgment on the merits will thus bar ‘a 

subsequent action between the same parties on the same cause of 

action.’” Id. (quoting Youngblood v. Taylor, 89 So. 2d 503, 505 (Fla. 

1956)). The principle of res judicata applies not only to subsequent 

independent proceedings, but to all collateral proceedings in the 

same action. Sibley v. Sibley, 885 So. 2d 980, 982 (Fla. 3d DCA 

2004); Utterback v. Starkey, 669 So. 2d 304, 305 (Fla. 3d DCA 1996). 

“[F]or the doctrine of res judicata to apply, several conditions must 

* We have sua sponte consolidated the appeals and crossappeals in both cases for purposes of this opinion.
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exist, which include: ‘identity of the thing sued for; identity of the 

cause of action; identity of [the] parties; and identity of the quality 

in the person for or against whom the claim is made.’” Dadeland 

Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1235 

(Fla. 2006) (quoting Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984)). 

A trial court’s ruling concerning the application of res judicata is 

reviewed de novo. Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1259 

(Fla. 2006); Bryan v. Fernald, 211 So. 3d 333, 335 (Fla. 2d DCA 

2017); Aronowitz v. Home Diagnostics, Inc., 174 So. 3d 1062, 1065 

(Fla. 4th DCA 2015); Crews v. Strother, 209 So. 3d 595, 596 (Fla. 

1st DCA 2014).

Here, Former Husband claims that the trial court erred in 

ordering him to transfer the marina property described in the MSA 

to Codisco pursuant to the bankruptcy court’s order. Specifically, 

he asserts that res judicata barred Former Wife from relitigating 

the marina transfer issue because she relinquished her right to 

have the marina transferred to Codisco when she executed the 

MSA, which was incorporated into the final judgment of dissolution 

of marriage. 

 The MSA expressly provided that the marina property would 

remain in a family trust and that the value of the marina property 

would be considered when determining the value of Former Wife’s 

stock under the MSA’s buyout provision. The MSA further provided 

that it superseded any prior agreements between the parties. When 

the court incorporated the MSA into its final judgment, this 

constituted an adjudication on the merits of Former Wife’s claim

seeking transfer of the marina property.

To the extent that the trial court concluded that res judicata 

did not apply because Former Husband concealed the bankruptcy 

court’s order during the dissolution proceedings, Former Husband

could not have concealed the order because it was a document from 

a public proceeding in which Former Wife was a participant. That 

is, Former Husband could not conceal an order appearing on the 

public docket that was available to Former Wife and her lawyers at 

all times. Because res judicata barred Former Wife from 

relitigating her claim seeking to enforce the transfer provision of 

the bankruptcy order, the trial court erred in ordering Former 

Husband to transfer the marina property to Codisco.
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As to the prevailing party attorney fee issues, we find that 

this litigation ended in a tie with each party prevailing in part and 

losing in part on the significant issues. Or, stated differently, 

compelling circumstances support the conclusion that there was no 

prevailing party in this case. See Wells Fargo Bank, N.A., as Tr., for 

SASCO 2007-MLN1 Tr. v. Moccia, 258 So. 3d 469, 471 (Fla. 4th 

DCA 2018) (concluding that the litigation ended in a proverbial tie 

with each party prevailing in part and losing in part where the 

borrowers were successful in having the bank’s foreclosure action 

involuntarily dismissed, but the bank was also successful in having 

the deed agreement enforced against the borrowers); Ruffa v. 

Saftpay, Inc., 163 So. 3d 711, 715 (Fla. 3d DCA 2015) (holding that 

it was completely reasonable to determine that neither party 

should recover fees where the plaintiff brought two separate breach 

of contract claims, albeit under one cause of action, and prevailed 

completely on one of those claims while the defendant prevailed 

completely on the other); Merchs. Bonding Co. (Mut.) v. City of 

Melbourne, 832 So. 2d 184, 186 (Fla. 5th DCA 2002) (“This is a 

classic case where two parties fought to a draw; no one won and no 

one lost. The trial court found Continental breached its contract by 

failing to get written change orders, but it also found the City was 

‘wrong’ in destroying and replacing Continental’s sewer system, 

after using it for one and one-half years, when it was not necessary 

to do so.”); see also Circuitronix, LLC v. Kapoor, No. 15-CV-61446, 

2019 WL 2245572, at *7 (S.D. Fla. Apr. 12, 2019) (declining to 

award prevailing party attorney’s fees where the stalemate 

resulting from the parties’ competing cross-motions to enforce a 

settlement agreement provided a compelling reason to find that 

neither party prevailed); Dear v. Q Club Hotel, LLC, No. 15-CV60474, 2017 WL 5665359, at *7 (S.D. Fla. Nov. 1, 2017) (concluding 

that neither side was a prevailing party where each party won and 

lost on significant issues). 

Accordingly, we reverse that portion of the trial court’s order 

requiring Former Husband to transfer the marina property to 

Codisco. In addition, we reverse the trial court’s award of prevailing 

party attorney’s fees to Former Wife. On remand, the trial court is 

directed to deny fees to both parties insofar as the litigation 

essentially ended in a tie. In all other respects, we affirm.
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AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. 

WALLIS, JAY, and HARRIS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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