GASPAR'S PASSAGE, LLC, an Ohio limited liability company, Appellant,
RACETRAC PETROLEUM, INC., a Georgia corporation, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Linda Babb, Judge.
Deese Newlon and William P. Cassidy, Jr., of Johnson &
Cassidy, P.A., Tampa, for Appellant.
Ellen R. Himes and David O'Quinn of Fidelity National Law
Group, Fort Lauderdale, for Appellee.
Passage, LLC, appeals a final judgment entered in favor of
RaceTrac Petroleum, Inc., on its amended counterclaim for an
equitable lien. This action is the result of a dispute over
the sale of commercial property in Pasco County that had been
held in trust. RaceTrac purchased the property, but
subsequent to the sale, one of the trust beneficiaries
challenged the trustee's authority to enter into and
complete the sale. As a result, Gaspar, the successor
trustee, sued the title insurance company and RaceTrac.
RaceTrac, in turn, filed two counterclaims against Gaspar for
an equitable lien and unjust enrichment as well as a
cross-claim against the original trustee and a third-party
complaint against the original trustee and one of the trust
beneficiaries. The counterclaims against Gaspar were based on
RaceTrac's assertion that it had paid off various liens,
back taxes, and certain mortgages. Although the trial court
determined that RaceTrac had wrongfully obtained the
property, it also determined that RaceTrac was entitled to an
equitable lien for the amount of money it expended in
acquiring the property. Thereafter, the trial was continued
on the remaining issues to permit RaceTrac to add
indispensable parties. In this appeal, Gaspar argues that the
trial court erred by refusing to permit it to take a
deposition of RaceTrac's expert witness or to add
additional witnesses or exhibits after granting the
continuance of the trial. We agree and therefore reverse on
this issue. We affirm the other issues raised by Gaspar, but
we note that our reversal may necessitate reconsideration of
those issues on remand.
the pendency of the proceedings below, Gaspar filed an
amended motion for partial summary judgment seeking to void
the quitclaim and general warranty deeds that RaceTrac
obtained during the sale of the property. The trial court
granted the motion and voided the deeds, finding that the
trustee had lacked authority to sell the property.
trial commenced in March 2015, but upon RaceTrac's
request, the trial court continued the trial to allow
RaceTrac to amend its cross-complaint to add additional trust
beneficiaries as indispensable parties to the action. During
a discussion regarding the continuation, the trial court
indicated that it expected that additional discovery would be
necessary. Specifically, the trial court stated: "So I
am going to continue this. If there needs to be some
discovery taken about this, sobeit [sic]. But I'm going
to continue this and allow that to happen."
trial court also determined that RaceTrac was entitled to an
equitable lien in the amount of $1, 841, 387.83 subject to an
upward adjustment if the trial court later determined that an
adjustment was necessary. That sum was comprised of the
amount that RaceTrac paid to the trust's lender plus
one-half of the amount RaceTrac paid to satisfy a second
mortgage on the property. Accordingly, the trial court
entered a partial final judgment voiding the deeds and
awarding RaceTrac the equitable lien.
subsequently filed its amended counterclaim, cross-claim, and
third-party complaint. The changes relevant to this appeal
were the addition of two indispensable parties (the original
trustee and a trust beneficiary) to the claims against Gaspar
for an equitable lien and unjust enrichment as well as
RaceTrac's request for an equitable lien and judgment
that, for the first time, included amounts for "carrying
costs and expenses and the value of improvements incurred in
the Subject Property since July 21, 2011."
RaceTrac's original demand for relief did not include a
request for carrying costs and expenses or the value of
improvements. As a result of RaceTrac's amended pleading,
Gaspar amended its answer and affirmative defenses to include
defenses of setoff and the exclusion of rental value from the
compensation due to RaceTrac for any improvements it made to
the property. After the filing of its amended counterclaim,
cross-claim, and third-party complaint, RaceTrac engaged in
3, 2016, hearing was conducted to address a motion for a
supersedeas bond, a motion for stay in RaceTrac's
separate appeal, a motion to compel, and a motion to extend
RaceTrac's lis pendens on the property. But at the
hearing, RaceTrac raised the issue of whether Gaspar could
engage in further discovery in preparation for the continued
trial that was scheduled for November 2016. This issue had
not been previously raised and was raised without notice to
Gaspar. After other discussions not relevant to this appeal
and after requesting a date for the continued trial,
RaceTrac's counsel brought up the issue of one of
RaceTrac's experts. The following discussion then ensued
in relevant part:
[RaceTrac's counsel]: I don't know if you're
going to open this up--essentially, we have the same
parties--if you're going to open up the whole calendar to
more discovery and experts and all that or if you're
going to say, "Look. You guys already did this.
We're not going to take a second bite at the apple."
The Court: Yeah. We're starting from where we stopped.
[RaceTrac's counsel]: Okay.
The Court: We're not starting over.
[RaceTrac's counsel]: Okay. Okay. Okay. But I didn't
know if they were going to have another bite at the apple for
an expert, because we have an expert who essentially was
going to testify. We have a witness from RaceTrac who's
going to testify about all the--the engineer. . . . [A]nd
then . . . a real estate expert to testify about what value
[the modifications that RaceTrac made] bring to the property.
Those are essentially the two witnesses we have left. I
don't know if we'll have to add testimony.
The Court: Those are not new witnesses.
[RaceTrac's counsel]: No. Those are the witnesses we had.
The Court: Those are the witnesses you had. I'm not going
to allow them--
[RaceTrac's counsel]: Your Honor, you didn't--
The Court: Just because they got a new attorney.
[RaceTrac's counsel]: Oh, no. Those are our witnesses--
The Court: No. I know that.
[RaceTrac's counsel]: --that you stopped the trial.
The Court: Right. But if they hadn't listed people--
[RaceTrac's counsel]: Okay.
The Court: --experts in ...