           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


DYCK-O'NEAL, INC.,

              Appellant,

 v.                                                     Case Nos. 5D15-3790

LARRY HENDRICK, JR.
AND CATHY HENDRICK,

              Appellees.

________________________________/

Opinion filed July 1, 2016

Appeal from the Circuit Court
for Brevard County,
David Dugan, Judge.

Susan B. Morrison, of Law Offices of Susan
B. Morrison, P.A., Tampa, for Appellant.

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


LAMBERT, J.

       The issue we address in this case is whether a trial court’s reservation of

jurisdiction in a final judgment of foreclosure to enter a deficiency judgment precludes a

party from filing a separate action at law to recover a deficiency when the foreclosure

court has neither granted nor denied the deficiency judgment. Our answer to this question

is "no."
       The relevant facts are not in dispute. Appellees were defendants in a foreclosure

action in which the plaintiff included in its complaint a request that the trial court reserve

jurisdiction to award a deficiency judgment, if appropriate. The court eventually entered

its final judgment of foreclosure and reserved jurisdiction to award a deficiency judgment.

After the foreclosure sale, the plaintiff assigned the judgment and note, including the right

to pursue a deficiency judgment, to Dyck-O’Neal, Inc. ("Appellant"). Rather than pursuing

the deficiency judgment in the foreclosure action, Appellant filed a separate action at law

against Appellees to recover a deficiency judgment. Appellees filed a motion to dismiss

for lack of jurisdiction, arguing that the court that entered the final judgment of foreclosure

and reserved jurisdiction to consider the entry of a deficiency judgment was the only court

that had jurisdiction to consider the deficiency. The lower court agreed and entered the

final order on appeal, dismissing the action based on a lack of subject matter jurisdiction.

       The resolution of this appeal comes from the language of section 702.06, Florida

Statutes (2014), which provides in pertinent part:

              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. . . . 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.

§ 702.06, Fla. Stat. (2014) (emphasis added).

       Our sister courts in Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433 (Fla. 3d DCA

2015), Dyck-O’Neal, Inc. v. Weinberg, 190 So. 3d 137 (Fla. 3d DCA 2016), and Cheng v.



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Dyck-O’Neal, Inc., 41 Fla. L. Weekly D1076 (Fla. 4th DCA May 4, 2016), have recently

addressed the same issue pending before us. Both courts determined that the language

in section 702.06 is unambiguous and that a separate action at law for a deficiency was

permitted, notwithstanding the foreclosure court’s reservation of jurisdiction in its final

judgment to consider a deficiency. More recently, the First District Court of Appeal

reached the opposite result, holding that a party is not entitled to pursue a separate action

at law where the foreclosure complaint includes a prayer for a deficiency judgment and

the trial court reserves jurisdiction to enter a deficiency judgment. Higgins v. Dyck-O'Neal,

Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).

       We agree with the Third District and Fourth District that section 702.06 is

unambiguous. The dispositive question under the statute is whether the foreclosure court

has granted or denied a claim for a deficiency judgment.           In the case below, the

foreclosure court had not granted or denied a deficiency judgment. Thus, the plain

language of section 702.06 permitted Appellant to bring the suit at issue to recover a

deficiency against the Appellees, and the trial court erred in dismissing the action based

on the lack of subject matter jurisdiction.1 Accordingly, we reverse the final order of

dismissal and remand with instructions to reinstate the complaint filed. We certify conflict

with Higgins v. Dyck-O'Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016).

       REVERSED and REMANDED, with instructions; CONFLICT CERTIFIED.

LAWSON, C.J., and ORFINGER, J., concur.




       1 Although not applicable to the present case, we note that section 95.11(5)(h),
Florida Statutes (2015), now provides for a one-year statute of limitations for an 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.

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