Barb's Sprinklers, Inc. v. Water Boy Lawn Sprinkler's, Inc.

686 So. 2d 646, 31 U.C.C. Rep. Serv. 2d (West) 608, 1996 Fla. App. LEXIS 12498, 1996 WL 685830

• Court: District Court of Appeal of Florida
• Decided: November 27, 1996
• Docket: No. 95-0479
• Status: Published

Opinion

STEVENSON, Judge.

This is an appeal from a final judgment entered pursuant to a verdict for the plaintiff, Water Boy Lawn Sprinklers, Inc., in a suit on a promissory note. We reverse.

The verdict was contrary to the manifest weight of the evidence and to law because plaintiff, by repossessing the business assets which served as collateral for the loan and subsequently failing to sell them so that the proceeds could be applied to the debt, effectively elected to retain them in satisfaction of the debt. See §§ 679.503-.504, .505(2), Fla.Stat. (1989); see also Allen v. Coates, 661 So.2d 879, 884-87 (Fla. 1st DCA 1995) (discussing the effect of the failure to give notice of election to retain assets on the secured parties’ ability to obtain a deficiency judgment). Because the uncontradicted testimony at trial was that the value of the repossessed business assets was greater than the amount due and owing under the note, the lender was entitled to nothing more. We also reject plaintiffs contentions that the verdict was proper because the business assets had already been repossessed by defendant’s landlord; there was no evidence in the record that a proper statutory distress action was filed pursuant to section 83.11, Florida Statutes (1989).

We have considered the other issues raised on appeal and find no error. Accordingly, we reverse the final judgment and remand with instructions that-the trial court enter judgment for the defendants, Barb’s Sprinklers, Inc..

REVERSED and REMANDED.

GLICKSTEIN, J., and BROWN, LUCY C., Associate Judge, concur.