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

SYLVIA HIGGINS and                    NOT FINAL UNTIL TIME EXPIRES TO
COLLIER HIGGINS,                      FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
      Appellants,
                                      CASE NO. 1D15-4784
v.

DYCK-O'NEAL, INC.,

     Appellee.
__________________________/

Opinion filed June 9, 2016.

An appeal from the Circuit Court for Duval County.
Lawrence P. Haddock, Judge.

Austin Tyler Brown of Parker & DuFresne, P.A., Jacksonville, for Appellants.

Susan B. Morrison, Tampa, for Appellee.




THOMAS, J.

      Appellants, Collier Higgins & Sylvia Higgins, seek review of an order

denying their motion for relief from a Final Default Judgment, wherein the trial

court determined that Appellants were indebted to Appellee, Dyck-O’Neal, Inc.

Appellants argued below and reassert here that the trial court lacked subject matter

jurisdiction and thus erred in denying their motion for relief, based in part on our
decision in Reid v. Compass Bank, 164 So. 3d 49 (Fla. 1st DCA 2015). Appellants

argue that Appellee was precluded from filing an action at law seeking damages

based on Appellants’ failure to satisfy their promissory note on the property at

issue, because Appellees had filed a prior foreclosure action which included a

prayer for a deficiency judgment, and the trial court in that action reserved

jurisdiction to enter a deficiency judgment. We agree with Appellants, and for the

reasons stated herein, we reverse the trial court’s denial of Appellants’ motion for

relief from judgment.

                                       Facts

      In 2009, Freedom Mortgage Corporation (Freedom) sued Appellants in

Duval County to foreclose the mortgage on Appellants’ property. It is undisputed

that in its complaint, Freedom included a request for a deficiency judgment against

Appellants, if the proceeds were insufficient to pay Freedom’s claim.            In

September 2009, the trial court entered a Final Summary Judgment in Foreclosure

that retained jurisdiction “for the purpose of making any further orders as may be

necessary and appropriate herein, including but not limited to all claims for

deficiencies.” (Emphasis added.) After the foreclosure sale, the Judgment and

Note was assigned to Appellee.

      Almost five years later, Appellee filed a new Complaint in law against

Appellants in Duval County, seeking damages as a result of Appellants’ failure to

                                         2
satisfy the promissory note on the property. Appellants did not respond to the

Complaint, and Appellee moved for default, which was granted. Appellee filed a

motion for final default judgment along with supporting affidavits. The trial court

ultimately entered a Final Default Judgment against Appellants, totaling

$89,724.15.

      Approximately 11 months later, Appellants filed a motion for relief from

judgment pursuant to rule 1.540(b), Florida Rules of Civil Procedure, asserting the

final judgment was void, as it was entered without subject matter jurisdiction,

citing Compass Bank. Appellee filed a memorandum of law in opposition to

Appellants’ motion for relief from judgment, asserting in part that our decision in

Compass Bank which discussed the relevant issue here was dicta. Following a

hearing, the trial court denied Appellants’ motion for relief from judgment, and

this appeal followed.

                                     Analysis

      Appellants argue here that Appellee was prevented from filing an action at

law, based on the prayer for a deficiency judgment in the prior foreclosure action,

where the prior foreclosure court unequivocally reserved jurisdiction to enter a

deficiency judgment. It is undisputed that the argument on appeal concerns an

issue of law, which is reviewed de novo. Compass Bank, 164 So. 3d at 52 (citing

Fla. Ins. Guar. Ass'n, Inc. v. Bernard, 140 So. 3d 1023, 1027 (Fla. 1st DCA 2014)).

                                         3
      In addressing the legal issue presented here, we return to the analysis of this

court’s decision in Compass Bank:

      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.

      (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
                                         4
      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).

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., 100 Fla. 1088, 130 So. 725, 727 (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., 101
Fla. 1324, 135 So. 795, 797 (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, 109 Fla. 42, 146 So. 641,
643 (1933), 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, 114 Fla. 300, 153 So. 843,
844 (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
                                     5
specifically praying for a deficiency, the complainant may waive the
relief prayed 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, 139 Fla. 246, 190 So. 505, 505
(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 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
                                    6
      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, 140 Fla. 38, 191 So. 311, 311 (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, 148 Fla. 160, 3 So.2d 799, 799 (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
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
                                   7
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 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 mortgage. Id.
at 857. The final decree of foreclosure expressly reserved jurisdiction
in the court for the determination of any motion for a deficiency
                                    8
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 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
                                   9
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 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 upon Reid is misplaced.

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
                                   10
      affirmance is warranted in this case based upon the circumstances
      presented. Unlike the situation in First Federal Savings where the
      foreclosure court 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, 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.

Compass Bank, 164 So. 3d at 52-57 (footnotes omitted).

      Regardless of whether this prior analysis on the merits of the issue was dicta

in Reid, we now adopt this analysis in our holding here. And we disagree with our

sister court’s holding in in Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433 (Fla. 3d

DCA 2015), that the revised relevant statutory language compels a different result.

      The facts in Garcia are very similar to this current appeal.           In 2009,

BAC Home Loans Servicing brought a successful foreclosure action against Garcia

and others, and the prayer for relief included the court taking jurisdiction for the

purpose of a deficiency judgment. 178 So. 3d at 434. The final judgment of

foreclosure reserved jurisdiction to adjudicate any claim seeking a deficiency

judgment. Id. After the foreclosure sale, the appellee was assigned the judgment

                                         11
and note, and filed a separate action in the same county as the foreclosure action

against Garcia seeking the deficiency. Id. Garcia did not respond, the clerk’s

default was entered in September 2014, and the appellee moved for entry of a final

default judgment. Id. Garcia filed a motion to dismiss, arguing that the trial court

lacked subject matter jurisdiction of the deficiency action because BAC sought

deficiency relief and the foreclosure court expressly retained jurisdiction to

adjudicate the deficiency. Id. The trial court rejected this argument, and Garcia

appealed, relying on First Federal Savings and Compass Bank.

      The Third District found that the portions of the opinions relied upon by

Garcia were dicta and, in relevant part, held:

      A. First Federal Savings' Dicta
      In First Federal Savings, the plaintiff obtained a judgment of
      foreclosure in Palm Beach County; the foreclosure court retained
      jurisdiction to determine a deficiency judgment. The plaintiff then
      filed an action in Broward County to recover the deficiency. On
      plaintiff's motion, the circuit court in Palm Beach County terminated
      its jurisdiction. The Broward County circuit court, however, dismissed
      the case because the Palm Beach County circuit court originally had
      retained jurisdiction. First Fed. Sav., 195 So.2d at 857.

      The Fourth District Court of Appeal held that the Palm Beach County
      circuit court should not have abandoned its jurisdiction. Initially, the
      Florida Supreme Court granted certiorari review based on an apparent
      conflict among the districts. In discharging the writ of certiorari,
      however, the Florida Supreme Court determined that no conflict
      existed after all. In its conclusion, the Florida Supreme Court's
      glancing reference to the rule for recovering a deficiency judgment
      does not constitute the holding of the case. First Fed. Sav., 195 So.2d
      at 859.

                                         12
      ...

      C. Statutory Authority Eclipses Dicta
      When the clear and unambiguous language of a statute commands one
      result, as here, while dicta from case decisions might suggest a
      different result, we must apply the statute so as to give effect to
      legislative intent. Citizens Prop. Ins. Corp. v. Perdido Sun Condo.
      Ass'n, Inc., 164 So.3d 663, 666 (Fla.2015). In determining legislative
      intent, we first look to the language of the statute. State v. Hackley, 95
      So.3d 92, 93 (Fla.2012) (“The first place we look when construing a
      statute is to its plain language—if the meaning of the statute is clear
      and unambiguous, we look no further.”).

      We need look no further than the plain language of section 702.06.
      The dicta in First Federal Savings and Compass Bank does not carry
      the weight of authority of section 702.06 as it is now constituted. The
      remedial nature of the 2013 amendment to section 702.06 militates
      against our further interpreting an inconsistent body of case law.

178 So. 3d at 435-36 (footnotes omitted).

      We respectfully disagree with the Third District’s opinion, which does not

dissuade us from adopting this court’s analysis in Compass Bank. In particular, we

cannot ignore that part of the supreme court’s First Federal Savings’ holding that

its certiorari jurisdiction was unadvisedly granted, based on the fact that the Fourth

District’s underlying opinion in First Federal Savings did not disrupt the law that

appeared firmly established, and the facts of the case were specifically

distinguishable from Reid, as that prior Florida Supreme Court opinion did not

involve a reservation of jurisdiction like First Federal Savings. Furthermore, we

cannot read the statutory language to effect a monumental change in the law,

which would allow a mortgagee to sue to foreclose on the mortgaged property,
                                         13
successfully request the court to reserve jurisdiction to enter a deficiency judgment

in the event of a shortfall after the sale of the property, and then after the court

reserves jurisdiction at the request of the mortgagor (or the successor), then permit

the mortgagor to seek a deficiency judgment at common law.                 The statute

expressly prohibits such a result if the original suit in foreclosure results in an

order granting or denying the deficiency judgment. In our view, when the original

court in foreclosure reserves jurisdiction to grant or deny the deficiency judgment,

the statute cannot be logically or fairly read to permit the plaintiff in the original

action to disregard the court’s reservation of jurisdiction, and file another action at

law. When the court in the foreclosure action has been requested to grant a

deficiency judgment and has reserved jurisdiction to do so, the plaintiff is bound

by that court’s ultimate exercise of jurisdiction to rule on the matter.

      We agree with the federal district court in Wells Fargo Bank, N.A. v. Jones,

2014 WL 1784062 (M.D. La. May 5, 2014), that to interpret this statute as read by

the Third District and asserted by Appellee would permit forum shopping and

contravene the Florida Supreme Court case law to the contrary, which the statute

does not specifically abrogate. In Jones, like here, the lender had sought a

deficiency judgement in the original foreclosure action, that court had reserved

jurisdiction to render such relief, but the lender then sought a deficiency judgment

at common law in federal court, disregarding its earlier request for relief in the

                                          14
Florida state court which still retained jurisdiction to grant relief. The court in

Jones stated: “This Court finds that the Florida law providing the lender with ‘the

right to sue at common law to recover such deficiency’ was never meant to apply

to the present situation.” We agree, and further note that the statute cannot be

reasonably read to allow a lender to seek a deficiency judgment in the original

foreclosure action, where the court is granted the discretion to deny such relief, and

retains jurisdiction to do so, and then grant the lender the right to forum shop and

file yet another action based on contract principles where the subsequent court is

not authorized to deny relief in common law, absent unusual circumstances.

Absent specific direction from the legislature, such a reading is not justified.

Rather, we read the revised statutory language as simply clarifying and reiterating

long-standing judicial holdings that if the original foreclosure court ignores a claim

for a deficiency judgment, or one is not sought there, the lender may seek relief at

common law.

      As we acknowledged in Compass Bank, “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.” 164 So. 3d at 56

(emphasis added). We now hold that while the statutory language may “support”

                                          15
such an argument, it does not persuade us that the legislature intended to actually

overrule Florida Supreme Court decisions that address the issue more specifically

and hold to the contrary. Thus, we fully agree with our prior opinion that

Appellee’s reliance on Reid is misplaced, and we hold 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. Accordingly, we reverse the trial

court’s denial of Appellants’ motion for relief from judgment and remand for the

trial court to void the default judgment.

      REVERSED and REMANDED.

LEWIS, J., CONCURS; MAKAR, J., DISSENTING WITH OPINION.




                                            16
MAKAR, J., dissenting.

      A final judgment of foreclosure entered against Sylvia and Collier Higgins

resulted in their home being sold at auction. Dyck-O’Neal, Inc., which was

assigned the judgment and underlying note, sued in a separate proceeding to collect

the deficiency between the amount due on the note and the property’s value. A

final judgment of default was entered against the Higgins because they failed to

respond in the deficiency proceeding. A year later, the Higgins sought to void the

default judgment, claiming the trial court lacked jurisdiction because the

foreclosure court had reserved jurisdiction to consider a request for a deficiency

judgment in that proceeding.

      The trial court properly denied the Higgins’ request because the Legislature

had just recently enacted a clearly worded statute that established a “right to sue”

for a deficiency judgment “unless the court in the foreclosure action has granted or

denied a claim for a deficiency judgment.” § 702.06, Fla. Stat.; Ch. 2013-137,

Laws of Fla. Because the “court in the foreclosure action” had neither “granted”

nor “denied” the claim for a deficiency judgment in that proceeding, Dyck-O’Neal

had a clear statutory “right to sue” separately for a deficiency judgment. The

statute contemplates this precise situation, i.e., where a foreclosure court has been

presented, but not acted upon, a request for a deficiency judgment; in such a case,

the complainant has the “right to sue” to recover the deficiency. The statute doesn’t

                                         17
say the complainant must sue in the same court as the foreclosure action; instead,

the plain words of the statute envision the possibility of two separate proceedings,

perhaps in two different courts.

      The plain, unambiguous language of the statute has not escaped judicial

notice. Every Florida court addressing the issue of whether section 702.06

jurisdictionally bars a separate suit for a deficiency judgment has said

unequivocally that it does not. Instead, the only statutory jurisdictional bar is if the

“court in the foreclosure action has granted or denied a claim for a deficiency

judgment.” § 702.06, Fla. Stat. The Third District, in two cases with facts like this

one, have viewed the 2013 statutory language as “clear,” “plain,” and

“unambiguous.” Dyck-O’Neal, Inc. v. Weinberg, 41 Fla. L. Weekly D329 (Fla. 3d

DCA Feb. 3, 2016) (reversing an order dismissing for lack of jurisdiction based on

“unambiguous” and “plain language of the statute”); Garcia v. Dyck-O’Neal, Inc.,

178 So. 3d 433, 436 (Fla. 3d DCA 2015) (“When the clear and unambiguous

language of a statute commands one result, as here, . . . we must apply the statute

so as to give effect to legislative intent.”); see also Cheng v. Dyck-O’Neal, Inc., 41

Fla. L. Weekly D1076b (Fla. 4th DCA May 6, 2016) (agreeing with Third District

decisions “that section 702.06, Florida Statutes, is unambiguous”). As summarized

by the Third District in Garcia:




                                          18
      According to the statute, unless the foreclosure court has granted or
      has declined to grant a deficiency judgment, a plaintiff may pursue
      deficiency relief in a separate action. In the instant case, the
      foreclosure court did not grant or decline to grant the deficiency
      judgment claim; therefore, the trial court below had jurisdiction to
      consider Dyck–O'Neal's deficiency claim.

178 So. 3d at 436. Likewise, the Fourth District in Cheng concluded that the

“foreclosure judgment’s reservation of jurisdiction does not preclude a separate

suit to recover the deficiency where the foreclosure court has not granted or denied

a claim for a deficiency judgment.” Cheng, 41 Fla. L. Weekly D1076b. The clarity

of the 2013 statutory language decides this case; affirmance is required.

      Two additional points are warranted. First, the lengthy discussion of

erstwhile caselaw in Reid v. Compass Bank, 164 So. 3d 49, 57 (Fla. 1st DCA

2015), is dicta, immaterial, and misplaced. Because it is dicta, it has only

persuasive value; but it has failed to persuade both the Third and Fourth Districts.

It is immaterial because the 2013 statutory language at issue trumps whatever

perceived inconsistency the panel in Reid may have imagined with prior

precedents. See Garcia, 178 So. 3d at 436 (“Statutory Authority Eclipses Dicta”).

In addition, the caselaw recited cannot be said to be inconsistent with the 2013

revision. Rather, though the older caselaw is not entirely consistent, it appears that

a complainant had the right to pursue an action at law for a deficiency judgment if

a deficiency is not sought or entered in the foreclosure proceeding. See Reid v.

Miami Studio Props., 190 So. 505, 506 (Fla. 1939); see also First Fed. Sav. & Loan
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Ass’n of Broward Cnty. v. Consol. Dev. Corp., 195 So. 2d 856, 859 (Fla. 1967)

(“There has been no disturbance of the rule that if a deficiency 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.”).

      Second, whatever disagreement may exist about the efficiency of allowing a

separate proceeding to pursue a deficiency judgment is best left to the Legislature,

which has recently addressed and settled the matter. As the Third District said: “In

our view, the Legislature drafted a clear statute that resolved the courts’ struggle

with the issue in this case.” Garcia, 178 So. 3d at 436. If the statutory “right to sue”

in section 702.06 results in significant problems—which appears unlikely given the

right in some form has existed for over 75 years—the legislative branch may wish

to address them.




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