                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ROBERT G. REID,                       NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-930

COMPASS BANK,

      Appellee.


_____________________________/

Opinion filed May 1, 2015.

An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

Matthew W. Burns, Destin, for Appellant.

Tompkins A. Foster and Wayne E. Klinkbeil of Foster & Klinkbeil, P.A., Orlando,
for Appellee.




PER CURIAM.

      Appellant, Robert G. Reid, seeks review of a Final Judgment wherein the trial

court determined that Appellant was indebted to Appellee, Compass Bank, in the
amount of $619,690.27. Appellant’s primary argument on appeal is that Appellee

was precluded from filing an action at law seeking damages as a result of Appellant’s

failure to satisfy his promissory note on the property at issue because Appellee

included a prayer for a deficiency judgment in its foreclosure complaint and because

the trial court reserved jurisdiction in the foreclosure judgment to enter a deficiency

judgment. For the reasons stated herein, we affirm the Final Judgment.

      In 2008, Appellee sued Appellant in Okaloosa County to foreclose the

mortgage on Appellant’s property. Appellee requested that the trial court determine

the total amount owed by Appellant and that if the proceeds of a foreclosure sale

were not sufficient to satisfy its claim, the court “enter an order for a deficiency

judgment” against Appellant. In May 2009, the trial court entered a Summary

Judgment in Foreclosure, finding that Appellant owed Appellee $969,690.27 and

retaining jurisdiction “for the purpose of making any and all further orders as may

be necessary and proper, including a deficiency judgment against appropriate

Defendant(s) herein.” In October 2009, Appellee purchased the property at the

foreclosure sale, and a Certificate of Title was issued in November 2009.

      In January 2010, Appellee filed a Complaint against Appellant in Okaloosa

County, seeking damages resulting from Appellant’s failure to satisfy the

promissory note on the property. In April 2010, Appellant moved to dismiss the

Complaint for lack of jurisdiction, arguing that because the foreclosure judgment

                                          2
reserved jurisdiction to adjudicate a deficiency judgment, “jurisdiction reposes in

that case and cannot be acquired in the present civil action.” In June 2010, Appellee

moved to consolidate the foreclosure action and the action at law. The trial court

granted the consolidation motion in November 2010. Appellant’s motion to dismiss

the action at law was denied in May 2012.

       The trial court held a bench trial in the consolidated cases in January 2014,

during which Appellee presented evidence that it sold the property in February 2010

for $350,000 cash “less roughly 40-some odd thousand in costs, which gives us

$318,000” and testimony that the property’s appraised value was $350,000 at the

time of the foreclosure sale and the subsequent sale of the property. Appellee’s

counsel argued that after deducting the $318,200 Appellee received for the property

after costs, the remaining balance due from Appellant was $651,409. After hearing

argument concerning the propriety of the action at law in light of Appellee’s prayer

for a deficiency judgment in its foreclosure complaint and the court’s reservation of

jurisdiction in the foreclosure judgment to enter a deficiency decree, the trial court

stated in part:

       I do agree with you in one regard and that is that because it is in
       fact a deficiency, not truly an action on the note, that all of the
       principles would apply as to deficiency law in determining the
       amount that remained outstanding. . . .
                                            ...
             Now, let’s address the question of value. I am also aware the
       decisions recently have said that if a judge makes a decision as to value,
       which I believe in this case that is the credit that should be given, is the
                                            3
      value of the property at the date of sale, that I have to express the
      basis of that determination. . . . Here I have the testimony, both of the
      appraiser and we have an actual sale within four months, I believe, of
      the date of foreclosure to a third-party. And that amount is $350,000.
      Now, we have – now the owner is always entitled to express an opinion
      of value. [Appellant’s] opinion is that the property was worth a million
      dollars. I will take that at face value, but it is hard for the Court to
      reconcile with great disparity between [Appellant’s] opinion of value
      and what appears to be a third-party sale on the market. I heard no
      testimony that would suggest that the sale was other than a free and
      voluntary sale. . . . So, I believe the competent, substantial evidence is
      to accept the valuation of 350. I realize that the testimony was [] that
      there were costs of that sale. However, since I am accepting – since I
      am determining that the proper measure is a deficiency measure, it
      would be the value of the property, not the proceeds of the sale,
      which would determine the credit to which the debtor was entitled.
      Under the circumstances, that credit would be the $350,000, not the,
      what, 318,200 . . . . That would be the judgment of the Court.

(Emphasis added). The Final Judgment, which was filed under the foreclosure case

number, not the action at law case number, set forth that the amount due on the

foreclosure judgment, which was $969,690.27, “Less Credit for Value at time of

sale” of $350,000, resulted in Appellant being indebted to Appellee in the amount

of $619,690.27. This appeal followed.

      Appellant’s main argument on appeal is that Appellee was foreclosed from

filing an action at law on the promissory note given its prayer for a deficiency

judgment in its foreclosure complaint and the trial court’s reservation of jurisdiction

to enter a deficiency judgment. This argument presents an issue of law that is

reviewable de novo. Fla. Ins. Guar. Ass’n, Inc. v. Bernard, 140 So. 3d 1023, 1027

(Fla. 1st DCA 2014) (noting that an issue of law is reviewable de novo).
                                          4
        Prior to June 7, 2013, section 702.06, Florida Statutes, which is entitled

“Deficiency decree; common-law suit to recover deficiency,” provided:

        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 judicial
        discretion of the court, but the complainant shall also have the right
        to sue at common law to recover such deficiency, provided no suit
        at law to recover such deficiency shall be maintained against the
        original mortgagor in cases where the mortgage is for the purchase
        price of the property involved and where the original mortgagee
        becomes the purchaser thereof at foreclosure sale and also is
        granted a deficiency decree against the original mortgagor. 1

(Emphasis added). Section 702.06 was amended in 2013 to read:

        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. For
        purposes of this section, there is a rebuttable presumption that a
        residential property for which a homestead exemption for taxation was
        granted according to the certified rolls of the latest assessment by the
        county property appraiser, before the filing of the foreclosure action, is
        an owner-occupied residential property. 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.

See Ch. 13-137, § 5, Laws of Fla. (Emphasis added).2

1
 The language of section 702.06 was first included in section 5751 of the 1927
Compiled General Laws and was amended in 1929.
2
    With respect to the foreclosure amendments of 2013, the Legislature set forth:

                                            5
      In addressing Appellant’s argument, a review of the case law construing

section 702.06 is instructive. In Younghusband v. Ft. Pierce Bank & Trust Co., 130

So. 725, 727 (Fla. 1930), the supreme court held that “[i]f no deficiency judgment is

entered in foreclosure sale, it is clear that a suit at law for any amount still due is

available to the holder.” In Cragin v. Ocean & Lake Realty Co., 135 So. 795, 797

(Fla. 1931), the supreme court set forth that a plaintiff “having applied for and

obtained a deficiency decree in their favor in the court of equity, could not, under

the act of 1927, go into a court of law and maintain therein suits for the recovery of

the balance due on the notes.” In Provost v. Swinson, 146 So. 641, 643 (Fla. 1933),



      The Legislature finds that this act is remedial in nature and applies to
      all mortgages encumbering real property and all promissory notes
      secured by a mortgage, whether executed before, on, or after the
      effective date of this act. In addition, the Legislature finds that s.
      702.015, Florida Statutes, as created by this act, applies to cases filed
      on or after July 1, 2013; however, the amendments to s. 702.10, Florida
      Statutes, and the creation of s. 702.11, Florida Statutes, by this act,
      apply to causes of action pending on the effective date of this act.

See Ch. 13-137, § 8, Laws of Fla. The bill was approved by the Governor on June
7, 2013.

       The legislative staff analysis for the amendment provides in part, “The bill
also eliminates the common law recovery of such a deficiency when the court in the
foreclosure action grants or denies a claim for a deficiency judgment. This provision
appears to simplify the language of the current law without providing a substantive
change in the law.” See Fla. H.R. Comm. on Approp., CS/CS/HB 87 (2013) Staff
Analysis (Apr. 18, 2013). The supreme court’s case of Cragin v. Ocean & Lake
Realty, Co., 135 So. 795 (Fla. 1931), was cited in a footnote. Id.

                                          6
a case relied upon by Appellant, the supreme court set forth, “When the complainant

filed his bill in equity to foreclose the mortgage and therein prayed for a deficiency

decree, he elected that forum in which to have his right adjudicated and became

bound by that choice.”

      In Belle Mead Development Corp. v. Reed, 153 So. 843, 844 (Fla. 1934),

another case relied upon by Appellant, the supreme court explained that in August

1928, the appellee executed three promissory notes payable to the McElroys. It was

alleged that the notes were assigned and delivered before maturity to the appellant,

the plaintiff in the case. Id. The appellant filed suit for the foreclosure of the

mortgage, praying for a deficiency decree. Id. A foreclosure decree was obtained,

the property was sold, and the proceeds were applied to the payment of the debt. Id.

The appellant asked for a deficiency decree which was “resisted” by the “defendant,”

and the chancellor refused to enter a deficiency judgment. Id. The appellant

subsequently filed an action at law to recover on the promissory notes, and the trial

court “struck those pleas.” Id. The supreme court, in affirming, set forth, “In the

case at bar there was a special prayer for affirmative relief [for a deficiency decree].

The complainant thereby elected that forum in which to have its rights adjudicated

and became bound by that choice.” Id. The supreme court further set forth, “After

specifically praying for a deficiency, the complainant may waive the relief prayed




                                           7
for in that regard, but it does not avoid the choice of the forum by not applying for

the deficiency decree.” Id.

      In Reid v. Miami Studio Properties, 190 So. 505, 505 (Fla. 1939), a case relied

upon by Appellee in support of its argument that the action at law was permissible,

the supreme court noted that the complainant, in his bill to foreclose, prayed for a

deficiency decree in the event the property at issue did not bring enough to pay the

amount of the indebtedness and costs. The Chancellor did not enter a deficiency

decree and did not consider this phase of the prayer for relief. Id. The supreme court

explained that the sole question presented was “whether or not under the facts stated

the plaintiff Reid can now maintain an action at law to recover the amount of the

deficiency judgment which he prayed for in the foreclosure but which prayer was

not considered.” Id. The supreme court noted that the defendant contended that the

question should be answered in the negative because “the plaintiff in error elected

his forum and is bound by the result of his election.” Id. at 505-06. The defendant

relied upon Provost and Belle Mead in support of its argument. Id. at 506. The

supreme court set forth:

             We understand the law to be that where there is no prayer for a
      deficiency and where one is not sought or entered in the foreclosure
      proceeding the law courts may be resorted to to recover one. Since the
      entry of a deficiency decree under Section 5751, Compiled General
      Laws of 1927, is within the sound discretion of the Chancellor and if
      entered, the one in whose favor it is entered may resort to a suit at law
      to recover it, we see no basis for the logic that he is precluded from an

                                          8
      action at law to recover one if the chancellor is importuned to enter it
      and declines to consider the question or to make any ruling thereon.

            The cases relied on by defendant in error have been examined.
      They involve other factual situations affecting deficiencies but we do
      not consider that they rule the question we have here nor are we
      convinced that the elements essential to constitute an election of
      remedies are present.

             In fine, we understand Section 5751, Compiled General Laws of
      1927, to mean that if a deficiency decree is asked for in a foreclosure
      and granted, that settles the question of what forum may be sought
      for relief but if not asked for or if asked for and overlooked or not
      considered, the right of the claimant is not affected. He may sue at
      law and recover such portion as he may prove himself entitled to.

Id. (Emphasis added).

      In Crawford v. Woodward, 191 So. 311, 311 (Fla. 1939), the supreme court,

relying on Provost, Cragin, and Belle Mead and finding Reid distinguishable,

determined that the plaintiff could not maintain an action at law after the foreclosure

where the plaintiff prayed for a deficiency decree, notwithstanding the facts that the

plaintiff later stated in the confirmation of the foreclosure sale that “Complainants

are not asking for a deficiency decree” and none was rendered by the chancellor.

      In Luke v. Phillips, 3 So. 2d 799, 799 (Fla. 1941), the supreme court addressed

the plaintiff’s contention that Reid overruled Belle Mead. The supreme court,

without setting forth the facts of the case, set forth, “[T]he instant case is ruled

by Reid . . . wherein we pointed out that the facts of that case were distinct from

those in the Belle Mead . . . case and that line of cases which were not inferentially

                                          9
or otherwise overruled.” Id.

      In McLarty v. Foremost Dairies, 57 So. 2d 434, 434 (Fla. 1952), the supreme

court considered a petition for writ of certiorari to review a judgment of the Duval

County Circuit Court which affirmed the judgment of the Civil Court of Record for

Duval County. The supreme court explained that the respondent was the owner and

holder of a note secured by chattel mortgage and brought suit in Volusia County

against the petitioner to foreclose the mortgage. Id. In the suit to foreclose, the

respondent prayed for a deficiency decree. Id. No further action was taken with

regard to the prayer for deficiency. Id. The personal property mortgaged was sold

pursuant to a final decree entered in the foreclosure proceedings and after crediting

the proceeds of the sale to the note, there remained due and owing to the plaintiff

$1,548.41. Id. “At no time during the entire proceedings was any request made for

a deficiency nor was the matter called to the attention of the Court in any way.” Id.

The only time or place where the matter of deficiency appeared in the proceedings

was the prayer for deficiency contained in the bill of complaint. Id. The respondent

“[i]n due course” filed suit in Duval County for the balance due under the note after

crediting the proceeds of the foreclosure sale. Id. The petitioner, the defendant

below, pleaded as a defense the foreclosure suit and the prayer for deficiency

contained in the bill of complaint. Id. It was the contention of the petitioner that the

respondent “having prayed for a deficiency without obtaining one, could not sue

                                          10
upon the note to recover the balance due upon the mortgage note.” Id.

      The supreme court found that the case was controlled by Reid and Luke and

noted the alleged confusion between those cases and the cases of Crawford and Belle

Mead. Id. The supreme court explained that although the facts in Luke did not state

that a deficiency decree was prayed for, its review of the record in that case showed

that the bill to foreclose the mortgage contained a prayer for a deficiency

judgment. Id. at 435. It also explained that the facts of the case at hand were

identical to the facts of Luke where the “sale of the mortgage property and

disbursements were approved and confirmed by the Chancellor but no deficiency

decree was entered or requested.” Id. After noting that its holding in Reid was

reaffirmed in Luke, the supreme court set forth, “If the opinion in Reid . . . as

affirmed in Luke . . . is in conflict with any other holdings with reference to the

subject matter, such holdings, or opinions, are over-ruled to the extent of such

conflict.” Id. The supreme court found no departure from the essential requirements

of the law in the case before it. Id.

      Thereafter, in First Federal Savings & Loan Association of Broward County

v. Consolidated Development Corp, 195 So. 2d 856, 858 (Fla. 1967), the supreme

court addressed McLarty, Reid, and Luke. In First Federal Savings, the petitioner

brought a foreclosure suit in Palm Beach County and prayed for a deficiency decree

if the proceeds of the mortgage sale were less than the amount due on the

                                         11
mortgage. Id. at 857. The final decree of foreclosure expressly reserved jurisdiction

in the court for the determination of any motion for a deficiency decree. Id. The

petitioner then brought an action to recover the deficiency in Broward County and

represented to the foreclosure court in Palm Beach County that inasmuch as no

motion had been made there for a deficiency decree, there was no longer a need for

retention of jurisdiction of the cause in that court. Id. The foreclosure court entered

an order terminating jurisdiction. Id. The Broward County court dismissed the case

before it, ruling that the petitioner, after having selected its forum in Palm Beach

County, should not be permitted to subject the respondents to further harassment and

expense. Id. The dismissal was appealed to the Fourth District Court of Appeal. Id.

After noting that the abandonment of jurisdiction in Palm Beach County did not

occur until twenty-six days after the action at law was filed in Broward County, the

supreme court explained that the Fourth District decided the case “on the principle

that a court may not switch its jurisdiction, or power, on and off as one would an

electric light.” Id. at 857-58. The supreme court also noted the Fourth District’s

determination that “[f]or the purposes of deficiency decrees vel non this power is not

for the benefit of the court; hence, it cannot waive its jurisdiction in that regard. It

may refuse or refrain from exercising the power, but the chancellor cannot abjure a

court of equity of its innate or inborn jurisdiction by mere words of jacitation.” Id.

at 858. The Fourth District concluded that the Palm Beach County Circuit Court

                                          12
still had jurisdiction of the subject matter and the question of a deficiency decree and

held that the dismissal in Broward County constituted a dismissal without prejudice

to the plaintiff’s right to have the question of deficiency determined by the Palm

Beach County Circuit Court. Id.

      On first examination of the petition for certiorari, the supreme court concluded

that argument should be heard on the matter because of apparent conflict with its

prior decisions. Id. The supreme court summarized some of its prior decisions,

including Reid, McLarty, and Luke. Id. It distinguished Reid because in the case at

hand “the request [for a deficiency decree] was made in the complaint and apparently

was not immediately considered but was deferred as the court retained jurisdiction

to settle any motion for deficiency.” Id. The supreme court set forth, “So it may be

said that the request for deficiency was neither considered nor overlooked. Here

again on the salient facts the plaintiff was not at this point free to seek an adjudication

elsewhere, hence a conflict was not developed.” Id. The supreme court stated

of McLarty, “[T]here was a prayer for a deficiency but thereafter request for that

relief was ignored.” Id. It found that the holding in Luke was essentially the same

as the one in Reid. Id. The supreme court was ultimately unable to discover the

conflict that would vest jurisdiction with it because “there appears to be no

inconsistency between what was held here and what was decided in the cited

cases.” Id. It set forth, “There has been no disturbance of the rule that if a deficiency

                                            13
is sought and the relief is overlooked or not considered, the one entitled to the

recovery of the balance of the debt left over after the proceeds of the mortgage sale

have been credited may sue for the remainder at law.” Id. at 859. The court found,

however, that the “principle would have to be stretched out of form to condone what

the plaintiff undertook in this case.” Id. It concluded that the Fourth District’s

decision was sound and did not disrupt the law that “appears firmly established.” Id.

      In support of its argument on appeal that its action at law was permissible,

Appellee relies not only on Reid but also upon the plain language of section 702.06,

both before and after the 2013 amendment. While we agree that the plain language

of both versions of section 702.06 supports an argument that a party may file an

action at law to recover a deficiency so long as a trial court has not actually ruled

upon a request for a deficiency judgment in the foreclosure case, cases such as Belle

Mead and First Federal Savings suggest otherwise. We note also that any question

as to whether Reid permits a party to file an action at law after including a prayer for

a deficiency judgment in a foreclosure complaint and after the trial court reserves

jurisdiction to consider such a request was resolved by the supreme court in First

Federal Savings. There, as here, the foreclosure complaint contained a prayer for a

deficiency decree, and the foreclosure judgment expressly reserved jurisdiction to

rule upon a deficiency request. As the supreme court noted in First Federal Savings,

there was not a reservation of jurisdiction in Reid. As such, Appellee’s reliance

                                          14
upon Reid is misplaced. 3

      Notwithstanding the fact that First Federal Savings supports the argument that

a party is not entitled to pursue an action at law on a promissory note where that

party includes a prayer for a deficiency judgment in its foreclosure complaint and

the trial court reserves jurisdiction to enter a deficiency judgment, we have

determined that affirmance is warranted in this case based upon the circumstances

presented. Unlike the situation in First Federal Savings where the foreclosure court



3
   As Appellant acknowledges, certain language in more recent cases is supportive
of Appellee’s argument; none of the cases, however, were issued by the supreme
court, and none mention First Federal Savings. See Capital Bank v. Needle, 596 So.
2d 1134, 1136 (Fla. 4th DCA 1992) (“[C]ase law seems to suggest that where a party
seeks a foreclosure and a deficiency judgment for failure to pay on a promissory
note, and there is an actual adjudication on the merits of the claim for deficiency,
that party cannot proceed on a new action based on the same promissory note.”); see
also Royal Palm Corporate Ctr. Ass’n, Ltd. v. PNC Bank, NA, 89 So. 3d 923, 932
n.9 (Fla. 4th DCA 2012) (noting that “[a] plaintiff cannot pursue an action on the
note or guaranty where the plaintiff has prayed for the court to exercise its equity
jurisdiction and the court has adjudicated the issue, either granting or denying
judgment” and that “when a plaintiff forecloses on a security and the trial court does
not exercise its jurisdiction to consider the merits of a deficiency judgment, the
plaintiff may file an action on the promissory note or guaranty to recover the
remaining indebtedness”); De Las Cuevas v. Nat’l Enters. Inc., 927 So. 2d 41, 44-
45 (Fla. 3d DCA 2006) (noting that section 702.06 has been interpreted to allow a
post-foreclosure action to recover the balance due on a note where the court in the
foreclosure action did not adjudicate the issue of a deficiency); Chrestensen v.
Eurogest, Inc., 906 So. 2d 343, 345 n.2 (Fla. 4th DCA 2005) (“While it is possible
to include the deficiency claim in the foreclosure action, and in this case the trial
court’s final judgment of foreclosure specifically retained and reserved jurisdiction
to enter deficiency judgments, section 702.06 . . . allows the claimant to bring a
separate action at common law to recover the deficiency.”).

                                         15
entered an order terminating its jurisdiction, the trial court in this case granted

Appellee’s motion to consolidate the foreclosure case and the action at law.

Therefore, in contrast to the Palm Beach County Circuit Court in First Federal

Savings, the trial court in this case still had jurisdiction in the foreclosure case.

Although Appellant cites case law for the proposition that consolidated cases

maintain their independent status with respect to the rights of the parties involved,4

Appellant does not contend on appeal that the trial court erred in granting Appellee’s

motion to consolidate or in denying his motion to dismiss the action at law. We note

also that although Appellant moved to dismiss the action at law prior to Appellee

moving for consolidation, the record does not contain any argument put forth below

by Appellant in opposition to consolidation. As such, any question as to whether

consolidation was proper is not before us.

        More significant to our disposition is the fact that the trial court ultimately

treated the case not as an action at law but as a deficiency judgment proceeding. As

we explained, the court stated in part, “I do agree with you in one regard and that is

that because it is in fact a deficiency, not truly an action on the note, that all of the

principles would apply as to deficiency law in determining the amount that remained

outstanding.” The court further stated, “[S]ince I am determining that the proper

measure is a deficiency measure, it would be the value of the property, not the


4
    See St. Mary’s Hosp., Inc. v. Brinson, 685 So. 2d 33, 35 (Fla. 4th DCA 1996).
                                           16
proceeds of the sale, which would determine the credit to which the debtor was

entitled.” The trial court was correct in the measure it used for purposes of a

deficiency judgment, and we find no error in the trial court’s determination of a

$350,000 property value. See Empire Developers Grp., LLC v. Liberty Bank, 87

So. 3d 51, 52 (Fla. 2d DCA 2012) (noting that the correct formula to calculate a

deficiency judgment is the total debt, as secured by the final judgment of foreclosure,

minus the fair market value of the property as determined by the court and that the

critical date the fair market value must be established for purposes of determining

such a judgment is the date of the foreclosure sale). As we also noted, the Final

Judgment contained the foreclosure case number, not the action at law case number.

Moreover, the record is devoid of any evidence, and Appellant makes no showing

on appeal, as to how he was prejudiced or harmed by the manner in which the

consolidated cases proceeded or the way in which the trial court calculated his

indebtedness to Appellee. See McDowell v. Guinta, 421 So. 2d 810, 810 (Fla. 4th

DCA 1982) (“Although appellants have demonstrated procedural error, they have

failed to establish that they were prejudiced thereby. The record reflects several

technical procedural errors by the trial court in allowing the appellee to proceed on

pleadings that would usually merit dismissal with an opportunity to replead.

Notwithstanding these errors the substance of the appellee’s claims were properly

before the court, and the appellants were sufficiently apprised of those claims to bar

                                          17
the necessity of a retrial. This was, in essence, the view of the trial court in allowing

the appellee to present her claims to the jury. Obligated as we are not to place form

over substance, the trial court’s decision should be affirmed.”); McCall v. McCall,

386 So. 2d 275, 276 (Fla. 2d DCA 1980) (noting that the trial court arrived at an

“eminently equitable and appropriate result” under the facts of the case and that the

court’s only error was declaring that one of the parties had a “special equity” in the

family home and explaining that, while “[t]here may be cases where such an error

would require reversal, . . . we can discern no prejudice from letting the present

award stand”).

      Accordingly, we AFFIRM.

LEWIS, C.J., BENTON and THOMAS, JJ., CONCUR.




                                           18
