         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


DARYL BUSH,

             Appellant,

 v.                                                    Case No. 5D16-2344

WHITNEY BANK, A MISSISSIPPI STATE
CHARTERED BANK, FORMERLY KNOWN
AS HANCOCK BANK, A MISSISSIPPI STATE
CHARTERED BANK, AS ASIGNEE OF THE
FDIC AS RECEIVER FOR PEOPLES FIRST
COMMUNITY BANK, ETC.,

             Appellee.

________________________________/

Opinion filed May 19, 2017

Appeal from the Circuit Court
for Orange County,
John Marshall Kest, Judge.

L. William Porter, III, of Bogin, Munns &
Munns, P.A. of Orlando, for Appellant.

Michael Anthony Shaw and Stephen P.
Drobny of Jones Walker, LLLP, Miami, for
Appellee.

PALMER, J.

      In this breach of contract action, Daryl Bush (the borrower) appeals the final

judgment of monetary damages entered by the trial court in favor of Whitney Bank (the

bank). Because the trial court properly ruled that the one-year statute of limitations in
section 95.11(5)(h) of the Florida Statutes (2015) did not apply to the bank’s action, we

affirm.

          The borrower signed a promissory note (secured by a mortgage) and delivered it

to the Peoples First Community Bank. The note was later transferred to Hancock Bank.

Subsequently, the borrower requested a short sale which Hancock Bank approved. In the

letter approving the short sale, Hancock Bank wrote:

                15. The “shortfall” due to Hancock Bank is estimated at
                $235,093,80. The Borrower(s) will continue to be obligated to
                pay Hancock Bank the shortfall amount (outstanding loan
                balancing including additional charges, less net sale proceeds
                in [the] amount of $235.093.80).

The borrower accepted the terms of the letter, and the short sale occurred on August 31,

2011.

          On September 19, 2015, the bank filed an action seeking to reestablish a lost note

and to obtain damages for the borrower's breach of the promissory note. The borrower

filed a motion to dismiss the action, alleging that the action was time barred under section

95.11(5)(h) which provides:

                [a]n 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. The limitations period
                shall commence on the day after the certificate is issued by
                the clerk of court or the day after the mortgagee accepts a
                deed in lieu of foreclosure.

In particular, he argued that section 95.11(5)(h) should be interpreted in conjunction with

section 702.06 of the Florida Statutes (2015) which reads:

                Deficiency decree; common law suit to recover deficiency

                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



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              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.

       After a hearing, the trial court denied the motion. Thereafter, the bank successfully

moved for the entry of a final summary judgment for monetary damages, and this appeal

followed.

       The borrower argues that the trial court misinterpreted section 95.11(5)(h) in ruling

that the one-year statute of limitations did not apply to the bank's action. Specifically, he

contends that section 95.11(5)(h) must be interpreted in conjunction with section 702.06.

We disagree.1

       "Questions of statutory interpretation are matters of law that are reviewed de

novo." Green v. Cottrell, 204 So. 3d 22, 26 (Fla. 2016). “The first place [a court] look[s]

when construing a statute is to its plain language—if the meaning of the statute is clear

and unambiguous, [a court] look[s] no further.” State v. Hackley, 95 So. 3d 92, 93 (Fla.

2012) (citing Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1220 (Fla. 2010)).

       Here, the first sentence of section 95.11(5)(h) sets forth a one-year statute of

limitations for “[a]n 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.”

The statute’s second sentence clarifies the scope of the first sentence, providing: “The

limitations period shall commence on the day after the certificate is issued by the clerk of



       1  The parties do not dispute that section 95.11(2)(b) (providing a five-year
limitations period for “[a] legal or equitable action on a contract, obligation, or liability
founded on a written instrument”) would apply if subsection (5)(h) does not.



                                             3
court or the day after the mortgagee accepts a deed in lieu of foreclosure.” Id. Accordingly,

the limitations period is triggered by one of two events: 1) issuance of certificate by clerk

or 2) acceptance of deed in lieu of foreclosure by mortgagee. After a short sale, neither

of these events occur. Thus, pursuant to the statute’s plain terms, section 95.11(5)(h)

does not apply to the bank’s action.

       The borrower further contends that, if section 95.11(5)(h) does not apply to an

action following a short sale, then the portion of section 702.06 addressing short sales

would effectively be read out of the statute. We disagree.

       The language of section 702.06 does suggest that the Legislature considers an

action following a short sale to be a deficiency action for certain purposes. However, the

statute does not address when such an action must be brought. Rather, it establishes a

maximum amount of damages which may be recovered in an action following a short

sale. Accordingly, even though the one-year statute of limitations does not govern this

type of action, section 702.06 operates to limit the recovery in this type of action to the

difference between the outstanding debt and fair market value at the time of the short

sale. Thus, our interpretation of section 95.11(5)(h) does not render the short sale

provision in section 702.06 meaningless.

       The borrower additionally argues that the legislative history supports his

interpretation of the statute. However, when a statute is not ambiguous, a court is not

authorized to resort to the legislative history to determine the statute’s meaning.

Fla. Dep't. of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 323 (Fla. 2001).

              AFFIRMED.

JACOBUS, B.W., Senior Judge, concurs.
BERGER, J., concurring specially.



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BERGER, J., concurring specially.                                      Case No. 5D16-2344

       I agree with the majority that the plain language of section 95.11(5)(h) does not

support the borrower’s argument. I write separately to note that, in my view, legislative

history is useless as a tool for deriving legislative intent, even in the face of an ambiguous

statute. Indeed, "it is utterly impossible to discern what the Members of [the Legislature]

intended except to the extent that intent is manifested in the only remnant of 'history' that

bears the unanimous endorsement of the majority in each House: the text of the enrolled

bill that became law." Graham Cty. Soil & Water Conservation Dist. v. United States, 559

U.S. 280, 302 (2009) (Scalia, J., concurring).




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