       Third District Court of Appeal
                                State of Florida

                             Opinion filed July 30, 2014.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D13-597
                          Lower Tribunal No. 10-54870
                              ________________


                                Pierre Philippe,
                                     Appellant,

                                         vs.

               Michael Weiner, M.D., P.A. Sharing Plan,
                                     Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge.

      Raven Liberty, P.A., and Raven Ramona Liberty, for appellant.

      Paul M. Kade, for appellee.


Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.

      SCALES, J.

      Appellant, Pierre Philippe (Philippe), Defendant below, appeals from the

trial court’s April 9, 2012, Judgment for Deficiency, awarding Appellee, Plaintiff
below, Michael Weiner, M.D., P.A. Profit Sharing Plan (Weiner), prejudgment

interest, unpaid real estate taxes, insurance, and costs; Philippe also appeals the

trial court’s subsequent Order Denying Motions for Rehearing. We affirm in part,

and, because certain expenses relating to the property were improperly charged to

Philippe, and because prejudgment interest was improperly calculated, we reverse

in part.

                                        I.       Facts

        In February 2006, Philippe executed a balloon promissory note in the

amount of $500,000, as well as a mortgage securing payment to Weiner.

        Pursuant to the terms of the note, Philippe was to make monthly interest-

only payments for three years, after which time the note’s $500,000 principal

amount would be due. Also, pursuant to the note, interest was to accrue on any

amount in default at the rate of 18%.

        After Philippe defaulted on the note and mortgage by failing to pay the

balloon balance, Weiner instituted mortgage foreclosure proceedings against

Philippe.    In consideration for concluding the mortgage foreclosure action,

Philippe, as mortgagor, provided Weiner with a Deed in Lieu of Foreclosure (the

Deed). The Deed was executed and delivered to Weiner on February 24, 2010.1




1   The Deed was recorded March 15, 2010.

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        The Deed expressly provided that the conveyance of the property did not act

as a satisfaction or release of Philippe’s liability under the note, and that the

obligations due to Weiner under the note would not merge with the property

interest Weiner acquired under the Deed.

        In October 2012, Weiner filed a complaint, alleging Philippe defaulted under

the note and owed Weiner $672.768.01, less a reduction for the value of the

property obtained by Weiner via the Deed. Weiner also sought unpaid taxes and

insurance plus legal fees and costs.

        Two appraisals were prepared to value the subject property.       The first

appraisal, created April 26, 2011, by C & C Appraiser, Inc. (the C & C Appraisal),

appraised the property—using the effective date of March 31, 2011—at $360,000.

The C & C Appraisal was filed with the trial court on May 18, 2011. The second

appraisal, created September 26, 2011, by Charles V. Failla (the Failla Appraisal),

appraised the property—using the retrospective market value as of March 15,

2010—at $155,000. The Failla Appraisal was filed with the trial court on April 9,

2012.

        After conducting an evidentiary hearing at which Failla testified, the trial

court entered a Final Judgment for Deficiency in Weiner’s favor, finding the fair

market value of the property to be $155,000, based upon the Failla Appraisal. The




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trial court further found support for Weiner’s claim for unpaid real estate taxes and

insurance. It specified Weiner was to recover from Philippe:

      [the] principal sum of the promissory note of $500,000.00, pre-
      judgment interest at 18% per annum from February 17, 2009[,] to
      April 9, 2012 (after deducting interest payments of $11,666.66 on
      March 27, 2009) of $281,335.00, unpaid real estate taxes of
      $35,923.29, insurance in the amount of $4,844.72 and costs of
      $6,720.00 for a subtotal of $828.823.01, less $155,000.00, for a
      subtotal of $673.823.01[,] plus reasonable attorney’s fees in the
      amount of $2,800.00, for a grand total of $676,623.01, that shall bear
      interest at the rate of 4.75% a year, for which let execution issue.

      Philippe filed a pro se motion for rehearing, contending the Failla Appraisal

was a “fraud upon the court.”      Philippe later obtained counsel, who filed an

amended motion for rehearing to set aside the judgment, in which counsel argued

Weiner should be required to explain the $205,000 difference between the Failla

and C & C Appraisals. Philippe’s counsel later filed an addendum to his motion

for rehearing, contending the promissory note did not provide for the payment of

real estate taxes or insurance as items of indebtedness. The trial court denied both

motions for rehearing. This appeal followed.

                                   II.     Analysis

      A. Appraisals

      Philippe first contends the trial court erred in determining the amount of

Philippe’s indebtedness by relying upon the later-filed Failla Appraisal, which

valued the property at $155,000. He urges the C & C Appraisal, with an effective



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date of March 31, 2011, should have been utilized because it valued the property at

$360,000, resulting in less of a deficiency, ultimately entitling Weiner to a smaller

judgment.

      A trial court’s decision to admit into evidence an appraisal report is subject

to an abuse of discretion standard. See Eagle’s Crest, LLC v. Republic Bank, 42

So. 3d 848, 850 (Fla. 2d DCA 2010).           To determine the trial court abused its

discretion would require us to conclude the judicial action was “arbitrary, fanciful,

or unreasonable.” Id. at 852.

      The record reflects an evidentiary hearing took place on April 9, 2012, that

both appraisals were admitted into evidence, and that Failla himself testified.

However, we have not been provided with a transcript of the proceedings. We thus

cannot conclude from this record that the trial court abused its discretion by relying

on the Failla Appraisal. See id. at 850 (reviewing, on abuse of discretion standard,

the trial court’s decision to admit into evidence a party’s expert testimony and

appraisal report). See also Applegate v. Barnett Bank of Tallahassee, 377 So. 2d

1150 (Fla. 1979).

      B. Property Taxes and Insurance

      Our inquiry, however, does not end here. We still must determine whether

the trial court erred in awarding prejudgment interest , insurance, and taxes after

the date the property was deeded to Weiner.



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         The effective date of the Deed is February 24, 2010. See Sweat v. Yates,

463 So. 2d 306, 307 (Fla. 1st DCA 1984) (“[A] deed takes effect from the date of

delivery, and the recording of a deed is not essential to its validity as between the

parties or those taking with notice.”). Yet, Weiner alleged Philippe was liable to

Weiner for $672,768.01, an amount which included: (1) unpaid taxes for 2010 and

2011, totaling $35,923.29; (2) insurance premiums totaling $4,844.72; plus (3)

prejudgment interest (at the contractual rate of 18%) from February 17, 2009, to

April 9, 2012, on the full note amount of $500,000.

         We are aware of no authority that would support the trial court’s award to

Weiner of insurance and taxes on the property after the date the property was

deeded to Weiner. Once the Deed was signed and delivered to Weiner, Philippe no

longer was obligated to pay taxes or insurance on the property.

         Hence, it was error for the trial court to award any amounts to Weiner for

expenses related to the property after February 24, 2010 (i.e., the date of the Deed).

         C. Prejudgment Interest

         With regard to prejudgment interest, it appears the trial court calculated

prejudgment interest at the contractual interest rate of 18% on the full principal

balloon balance due on the note (i.e., $500,000) from the date of default (February

17, 2009) through the date of entry of the judgment (April 9, 2012). This was

error.



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      A plaintiff is entitled to prejudgment interest on his or her out-of-pocket,

pecuniary losses as those pecuniary losses are liquidated by a verdict. Argonaut

Ins. Co. vs. May, 474 So.2d 212, 215 (Fla. 1985).

      Because Weiner realized the value of the property on the date of the Deed,

his pecuniary losses were reduced on that date by the value of the property. For

prejudgment interest purposes, the trial court should have adjusted the principal

amount due on the note by subtracting the value of the property from the balloon

principal on the note; the trial court should have then recalculated prejudgment

interest on that adjusted principal amount. Hence, Weiner was entitled to

prejudgment interest, at the contractual rate of 18%, on his pecuniary losses of

$500,000 (the full principal balloon balance) from the date of default (February 17,

2009), through the date of the Deed (February 24, 2010). From February 25, 2010,

until the date of entry of the judgment (i.e., April 9, 2012), however, Weiner was

entitled to prejudgment interest, at the contractual rate of 18%, on his pecuniary

losses of $345,000 (i.e., the difference between the $500,000 full principal balloon

balance due on the note, and the $155,000 valuation of the property deeded to

Weiner on February 24, 2010).

                                  III.   Conclusion

      We affirm the trial court’s final judgment insofar as it relied on the Failla

Appraisal as a basis to value the subject property. We reverse the final judgment



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insofar as it awards unpaid real estate taxes and insurance beyond the effective

date of the Deed. We also reverse the calculation of prejudgment interest. We

remand with instructions that the trial court recalculate the judgment in accordance

with this opinion.

      Affirmed in part, reversed in part, and remanded with instructions consistent

herein.




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