Dyck-O'Neal v. Beckett , 200 So. 3d 181 ( 2016 )


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  •            IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    DYCK-O'NEAL, INC.,
    Appellant,
    v.                                                     Case Nos. 5D15-3005
    WILLIAM BECKETT, II,
    Appellee.
    ________________________________/
    Opinion filed July 1, 2016
    Appeal from the Circuit Court
    for Orange County,
    John E. Jordan, Judge.
    Susan B. Morrison, of Law Offices of Susan
    B. Morrison, P.A., Tampa, for Appellant.
    Austin Tyler Brown, of Parker & DuFresne,
    P.A., Jacksonville, for Appellee.
    LAMBERT, J.
    The issue we address in this case is whether a trial court’s reservation of
    jurisdiction in a final judgment of foreclosure to enter a deficiency judgment precludes a
    party from filing a separate action at law to recover a deficiency when the foreclosure
    court has neither granted nor denied the deficiency judgment. Our answer to this question
    is "no."
    The relevant facts are not in dispute. Appellee was a defendant in a foreclosure
    action in which the plaintiff included in its complaint a request that the trial court reserve
    jurisdiction to award a deficiency judgment, if appropriate. The court eventually entered
    its final judgment of foreclosure and reserved jurisdiction to award a deficiency judgment.
    After the foreclosure sale, the plaintiff assigned the judgment and note, including the right
    to pursue a deficiency judgment, to Dyck-O’Neal, Inc. ("Appellant"). Rather than pursuing
    the deficiency judgment in the foreclosure action, Appellant filed a separate action at law
    against Appellee to recover a deficiency judgment. Appellee filed a motion to dismiss for
    lack of jurisdiction, arguing that the court that entered the final judgment of foreclosure
    and reserved jurisdiction to consider the entry of a deficiency judgment was the only court
    that had jurisdiction to consider the deficiency. The lower court agreed and entered the
    final order on appeal, dismissing the action based on a lack of subject matter jurisdiction.
    The resolution of this appeal comes from the language of section 702.06, Florida
    Statutes (2014), which provides in pertinent part:
    In all suits for the foreclosure of mortgages heretofore or
    hereafter executed the entry of a deficiency decree for any
    portion of a deficiency, should one exist, shall be within the
    sound discretion of the court; however, in the case of an
    owner-occupied residential property, the amount of the
    deficiency may not exceed the difference between the
    judgment amount, or in the case of a short sale, the
    outstanding debt, and the fair market value of the property on
    the date of sale. . . . The complainant shall also have the right
    to sue at common law to recover such deficiency, unless the
    court in the foreclosure action has granted or denied a claim
    for a deficiency judgment.
    § 702.06, Fla. Stat. (2014) (emphasis added).
    Our sister courts in Garcia v. Dyck-O’Neal, Inc., 
    178 So. 3d 433
    (Fla. 3d DCA
    2015), Dyck-O’Neal, Inc. v. Weinberg, 
    190 So. 3d 137
    (Fla. 3d DCA 2016), and Cheng v.
    2
    Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1076 (Fla. 4th DCA May 4, 2016), have recently
    addressed the same issue pending before us. Both courts determined that the language
    in section 702.06 is unambiguous and that a separate action at law for a deficiency was
    permitted, notwithstanding the foreclosure court’s reservation of jurisdiction in its final
    judgment to consider a deficiency. More recently, the First District Court of Appeal
    reached the opposite result, holding that a party is not entitled to pursue a separate action
    at law where the foreclosure complaint includes a prayer for a deficiency judgment and
    the trial court reserves jurisdiction to enter a deficiency judgment. Higgins v. Dyck-O'Neal,
    Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).
    We agree with the Third District and Fourth District.            Section 702.06 is
    unambiguous. The dispositive question under the statute is whether the foreclosure court
    has granted or denied a claim for a deficiency judgment.           In the case below, the
    foreclosure court had not granted or denied a deficiency judgment. Thus, the plain
    language of section 702.06 permitted Appellant to bring the suit at issue to recover a
    deficiency against the Appellee, and the trial court erred in dismissing the action based
    on the lack of subject matter jurisdiction.1 Accordingly, we reverse the final order of
    dismissal and remand with instructions to reinstate the complaint filed. We certify conflict
    with Higgins v. Dyck-O'Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).
    REVERSED and REMANDED, with instructions; CONFLICT CERTIFIED.
    LAWSON, C.J., and ORFINGER, J., concur.
    1 Although not applicable to the present case, we note that section 95.11(5)(h),
    Florida Statutes (2015), now provides for a one-year statute of limitations for an action to
    enforce a claim of a deficiency related to a note secured by a mortgage against a
    residential property that is a one-family to four-family dwelling unit.
    3
    

Document Info

Docket Number: 5D15-3005

Citation Numbers: 200 So. 3d 181

Filed Date: 6/27/2016

Precedential Status: Precedential

Modified Date: 1/12/2023