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).

Case 5:11-cv-00132-RS-EMT Document 42 Filed 09/09/11 Page 1 of 3
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). 

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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 

Case 5:11-cv-00132-RS-EMT Document 42 Filed 09/09/11 Page 3 of 3