       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                              GAIL FLINN,
                               Appellant,

                                    v.

                    KEVIN DOTY, as curator of the
                    ESTATE OF ROBERT A. FLINN,
                             Appellee.

                             No. 4D18-1273

                             [July 10, 2019]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Paul B. Kanarek, Judge; L.T. Case No.
312014CA001020.

  Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A.,
Jupiter, for appellant.

    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton,
for appellee.

WARNER, J.

   Appellant challenges an amended final judgment after remand from
this court’s opinion in Flinn v. Doty, 214 So. 3d 683 (Fla. 4th DCA 2017).
The amended judgment converted an equitable lien—which had been
granted in the original final judgment that was subsequently reversed—to
a money judgment. However, because the original judgment had not been
stayed, the property upon which the lien was imposed was sold by judicial
sale, and a deficiency judgment was sought. Because this constituted an
election of remedies, we reverse the amended money judgment, as appellee
must pursue a deficiency decree.

   The facts surrounding this case are set forth in Flinn. Briefly, the
guardian of appellant’s father, appellant’s sister, sought to impose an
equitable lien on appellant’s homestead for monies that appellant had
secured from the sale of properties deeded to her at a time when her father
was incapacitated. Id. at 684. The proceedings resulted in a final
judgment imposing an equitable lien in the amount of $206,000 on
appellant’s home because appellant had used monies from the sale of the
father’s property to pay off her existing mortgage. Id. The court also
imposed an equitable lien for an additional $185,000 that appellant
received from other properties. Id. During these proceedings, the father
had died. Id. After an appeal to this court, which affirmed the final
judgment, the personal representative of the father’s estate filed a
complaint to foreclose the equitable lien against the homestead for
$206,000. Id. The PR also sought a money judgment for the $185,000
lien. However, the trial court entered a combined judgment for both liens
and interest in the amount of $421,428 and set a foreclosure sale. Id.

    While appellant sought to cancel the sale of her homestead, and
appealed the judgment, the PR did not cross-appeal the court’s refusal to
enter a money judgment. Instead, the PR set, and then reset, the sale.
This resulted in the sale of appellant’s homestead for $59,100. The PR
then moved for a deficiency for the difference between the sale price and
the $421,428. The trial court refused to consider the issue without proof
of the fair market value of the property. 1 No denial of the motion appears
in the record, and it is still pending.

    This court affirmed the imposition of the equitable lien of $206,000
against appellant’s homestead because those funds had been used to pay
off the mortgage on the home. Id. at 685. But we held that the $185,000
lien could not be included as part of the foreclosure proceeding because
those proceeds were not used to satisfy any obligations on the home. Id.
at 686. We reversed “the final judgment to the extent it enforces the
$185,000 lien and remand[ed] for the court to revise the judgment
accordingly.” Id.

   On remand, over the objection of appellant that the PR had already
elected his remedy by proceeding with the foreclosure and sale of the
property for both liens, the court entered an amended final money
judgment for $185,000 plus interest, prompting this appeal.

1  The trial court was correct that the fair market value is one consideration in
determining whether a deficiency decree should be entered. However, the court
cited to section 702.06, Florida Statutes (2018), which governs mortgage
foreclosures. As this was the foreclosure of an equitable lien and not a mortgage,
section 45.031 sets the procedures. Section 45.031(8), Florida Statutes (2018),
provides in part: “If the case is one in which a deficiency judgment may be sought,
and application is made for a deficiency, the amount bid at the sale may be
considered by the court as one of the factors in determining a deficiency under
the usual equitable principles.”


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   While raising multiple issues, we consider the appellant’s claim that
the PR elected his remedy by pursuing the foreclosure and deficiency
judgment, to be dispositive. “The election of remedies doctrine is an
application of the doctrine of estoppel and operates on the theory that a
party electing one course of action should not later be allowed to avail
himself of an incompatible course.” Barbe v. Villeneuve, 505 So. 2d 1331,
1332 (Fla. 1987). This is true, even if the remedy sought was an improper
one. In United Companies Financial Corp. v. Bergelson, 573 So. 2d 887,
888-89 (Fla. 4th DCA 1990), where a plaintiff chose an improper remedy,
we said:

      We acknowledge that real property cannot be the subject of
      conversion. American Int’l Land Corp v. Hanna, 323 So. 2d
      567, 569 (Fla. 1975). Therefore, conversion was a nonexistent
      remedy.        Ordinarily, if a plaintiff proceeds upon an
      nonexistent remedy, he is not precluded from resorting to
      another remedy. Rolf’s Marina, Inc. v. Rescue Serv. & Repair,
      Inc., 398 So. 2d 842, 843 (Fla. 3d DCA 1981) (quoting Perry v.
      Benson, 94 So. 2d 819, 820 (Fla. 1957). However, the
      plaintiff's effort under the nonexistent remedy must have been
      aborted to pursue another remedy. Id. Sub judice, appellees’
      effort under the conversion remedy was not aborted since that
      case proceeded to judgment. Appellees obtained the remedy
      they sought even though it was an improper remedy.

      “When a party elects between two or more inconsistent
      courses and has knowledge of all the pertinent facts, he binds
      himself to the course he adopts first and cannot later
      withdraw from this knowing election.” Barbe v. Villeneuve,
      505 So. 2d 1331, 1334 (Fla. 1987). Appellees cannot now seek
      a different remedy.

   Where a party first foreclosed on property and then sought to execute
on a money judgment on the promissory note, the Second District held
that the plaintiff had elected its remedy and had to pursue a deficiency
decree prior to seeking other collection efforts:

      Although a party may pursue both a foreclosure action and
      an execution on note, Mellor v. Goldberg, 658 So. 2d 1162 (Fla.
      2d DCA 1995), typically a party will follow a foreclosure sale
      by initiating a deficiency hearing to obtain a deficiency
      judgment. In this instance, Premier is attempting to execute


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      on the promissory note to obtain the difference between the
      foreclosure sale amount and the amount of the judgment.
      Premier's collection efforts have the potential to result in an
      inequity. By executing on a promissory note and then setting-
      off the amount recovered at foreclosure, Premier avoids a
      hearing on the amount of deficiency between the foreclosure
      sale amount and the judgment amount pursuant to section
      702.06, Florida Statutes.

Century Group, Inc. v. Premier Fin. Servs. E., L.P., 724 So. 2d 661, 662 (Fla.
2d DCA 1999) (footnote omitted).

   This case is similar to Century Group. The trial court entered a
foreclosure judgment of both equitable liens. The PR did not appeal, even
though he never requested foreclosure of the $185,000. Instead, he
pursued the sale of the property to satisfy both liens, and then sought a
deficiency decree when the amount of the sale was insufficient to cover the
total amount of the judgment. He has committed himself to that remedy,
which is inconsistent with obtaining a money judgment for the entire
amount of the $185,000.

    While our opinion reversing the imposition of the $185,000 lien on the
homestead directed the court to “revise the judgment accordingly,” the
judgment had not been stayed, and the property had already been sold to
satisfy both liens, thus enforcing the original judgment. Having sought a
deficiency, the PR’s course was already set as to how to satisfy its equitable
liens before our opinion was rendered. The PR must pursue the remedy
he elected. See Century Group. Depending upon the trial court’s
determination of the equities, there may be no substantive difference
between the amount the PR will obtain in the deficiency judgment or in
the money judgment. But that is a matter for the trial court and a full
hearing.

   Reversed and remanded with directions to vacate amended final
judgment.

GERBER and CONNER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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